UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


REMOVAL  OF  CAUSES, 


THE 


REMOVAL  OF  CAUSES 


STATE  TO  FEDERAL  COURTS. 

WITH  A  PBEUMINAET   CHAPTEB    ON 

JURISDICTION  OF  THE  CIRCUIT  COURTS  Of  THE 
UNITED  STATES. 


ROBERT    DESTY, 

AUTHOB  OP   "federal    PBOCEDUBE,"   "FEDERAL    CITATIONS,"   "FED- 
ERAL  CONSTITUTION,"   "  AMEBIC  AN   CBIMINAL   LAW,"   ETC. 


SAN  FRANCISCO: 
SUMNER    WHITNEY    &    CO, 

1882. 


T 


Copyright,  1882, 
By  Sumner  Whitney  &  Co. 


BACON  &  company,  PRINTERS. 


PEEFAOE. 


It  was  originally  intended  to  produce  a  work  exclu- 
sively upon  the  subject  of  Removal  of  Causes,  but  that 
subject  was  found  so  intimately  blended  with  the  subject 
of  jurisdiction  of  the  circuit  court,  that  it  was  found 
necessary  to  unite  the  two  subjects,  and  the  result  has 
been  the  production  of  the  present  work.  It  seems  that 
the  Act  of  March  3rd,  1875,  had  the  effect  of  repealing  the 
Act  of  1866,  but  had  not  the  same  effect  upon  the  Act  of 
1867,  amendatory  thereto.  While  the  later  act  extended 
the  jurisdiction  of  the  circuit  courts,  it  at  the  same  time 
contracted  the  right  of  removal,  as  to  time  of  application 
for  removal,  from  "  any  time  before  the  trial  or  final 
hearing  of  the  suit,"  as  recited  in  the  earlier  act,  to  "be- 
fore or  at  the  term  at  which  said  cause  could  be  first  tried, 
and  before  the  trial  thereof,"  as  recited  in  the  later  act. 

And  as  both  acts  were  to  be  read  together,  they  could 
not  fail  to  be  productive  of  serious  question  as  to  their 
judicial  construction,  as  will  be  seen  by  the  number  of 
cases  cited  in  this  volume  where  the  question  of  the  time 
of  application  for  removal  of  the  cause  was  brought  up. 
Many  applications  for  removal  were  relied  on  under  the 
Act  of  1867,  which  were  decided  as  taken  too  late  under 
the  Act  of  1875,  and  the  cause  remanded  for  want  of 
jurisdiction,  and  the  question  of  the  effect  of  the  later  act 
was  variously  determined  in  different  districts,  in  accord- 
ance with  the  rules  of  the  local  statutes  and  practice  as 
to  what  constituted  "  before  or  at  the  term  at  which  said 
cause  could  be  first  tried,  and  before  the  trial  thereof," 
creating  a  series  of  decisions  in  apparent  contradiction 
with  each  other,  but  in  reality  not  inharmonious. 


Viil  PREFACE. 

The  right  of  removal  depends,  firstly,  on  the  subject- 
matter  of  the  controversy,  without  regard  to  citizenship 
of  the  parties;  and  secondly,  on  the  diversity  of  citizen- 
ship of  the  parties.  Under  the  first  clause  of  §  2  of  the 
Act  of  1875,  as  to  the  right  of  removal  based  on  the  sub- 
ject-matter of  the  cause,  all  those  on  one  side  of  the  con- 
troversy must  unite,  and  tlie  cause  be  wholly  removed; 
while  under  the  second  clause  of  the  same  section  any 
one  or  more  of  either  party  could  remove,  if  the  entire 
controversy  could  be  wholly  determined  between  the 
parties  litigant.  The  latest  decisions  of  the  Supreme 
Court,  followed  by  those  still  later  of  the  circuit  and 
district  courts,  seem  to  have  at  last  settled  these  points. 

The  author  has  endeavored,  in  as  terse  language  as 
possible,  to  express  the  decision  of  the  court  on  these 
various  points,  leaving  it  to  the  reader  to  refer  to  the 
decisions  themselves  for  the  full  text  and  the  reasonings 
which  led  to  the  conclusion.  The  first  part  of  this  work 
is  occupied  by  the  United  States  Statutes  upon  the  sub- 
ject of  removal  of  causes,  arranged  in  their  chronological 
order.  This  is  followed  by  a  chapter  on  the  jurisdiction 
of  the  circuit  courts  of  the  United  States,  and  such  sec- 
tions as  pertain  to  the  exercise  of  that  jurisdiction.  This 
is  followed  by  the  sections  of  the  Revised  Statutes  and 
the  Act  of  1875  as  to  the  removal  of  causes  from  State 
courts  into  the  circuit  courts,  and  tlie  practice  and  pro- 
cedure incident  thereto.  Following  this  is  a  chapter  on 
removals  in  special  cases,  and  the  practice  and  procedure 
incident  thereto.  The  whole  being  annotated  by  all  the 
principal  cases  down  to  the  present  time,  and  an  index 
for  reference,  with  a  table  of  cases. 

EGBERT  DESTY. 

October,  1882. 


OOK"TE]^TS. 


CHAPTER    I. 

THE  STATUTES. 


Judiciary  Act  of  1789,  §  12,  p.  13. 

Revenue  Act  of  1833,  §§  3,  4,  p.  15. 

Revenue  Act  of  1866.  §§67,  68,  p.  17. 

Habeas  Corpus  Act  of  1863,  §  5,  p.  21. 

Habeas  Corpus,  Amendment  Act  of  1866,  §§  3,  4,  &,  p.  23. 

Removal  Act  of  1866,  p.  25. 

Removal  Act,  Amendment  of  1867,  p.  27. 

Removal  by  Corporations,  Act  of  1868,  p.  28. 

Civil  Rights  Act  of  1866,  §  3,  p.  29. 

Civil  Rights  Act  of  1871,  §  15,  p.  30. 

Actions  against  civil  officers  of  1872,  p.  33. 

Revised  Statutes,  §§  639-647,  p.  34. 

Removal  Act  of  1875,  §§  1-10,  p.  43. 


CHAPTER  n. 

JURISDICTION  OF  CIRCUIT  COURTS. 

S  1.  Original  concurrent  appellate,  p.  51. 

§  1  a.  Judicial  power— constitutional  provisions,  p.  52. 

Sib.  Power  of  Congress,  p.  53. 

§  1  c.  Civil  cases  in  law  and  equity,  p.  54. 

§  1  d.  Amount  in  controversy,  p.  56. 

§  1  e.  Suits  arising  under  the  Constitution,  p.  57. 

§  1   f.  Suitsunder  United  States  statutes  and  treaties,  p.  58. 

§  1  g.  Suits  arising  out  of  patent  laws,  p.  59. 

§  1  h.  Suits  arising  out  of  copyright  and  trade-mark  laws,  p. 

§  1   i.  "Where  the  Government  is  a  party,  p.  62. 

§  1  j.  Controversy  between  citizens  of  different  States,  p. 

§  1  k.  Jurisdiction  over  corporations,  p.  65. 

5  1   L  National  banks,  p.  67. 


§ 

m. 

§ 

n. 

§ 

0. 

§ 

P- 

§ 

q. 

§ 

2. 

r. 

§ 

2  a. 

§ 

2  b. 

§ 

2 

c. 

§ 

2 

d. 

§ 

2 

e. 

§ 

3. 

COXTENTS. 

When  an  alien  is  a  party,  p.  68. 
In  criminal  cases,  p.  70. 
Assignment  to  confer  jurisdiction,  p.  70. 
Assignee  of  choses  in  action,  p.  71. 
Territorial  limit  of  jurisdiction,  p.  74. 
Concurrent  jurisdiction,  p.  74. 
Liens— Appearance  of  parties,  p.  77. 
Jurisdiction,  how  acquired,  p.  79. 
Process  bj'  attachment,  p.  80. 
On  corporations,  p.  81. 
Waiver  of  irregularities,  p.  82. 
A  personal  privilege,  and  may  be  waived,  p.  83. 
Revival  on  death  of  party,  p.  84. 


CHAPTER    III. 

REMOVAL  OF  CAUSES. 

§   4.  Amount  in  dispute,  p.  85. 

§  4  a.  Constitutional  provisions,  p.  85. 

§   4  b.  Amount  in  controversy,  p.  86. 

§    4  c.  Eight  of  removal,  p.  88. 

§  4  d.  Eight  dependent  on  citizenship,  p.  89. 

§  4  e.  From  any  State  court,  p.  90. 

§   5.  Suit  against  an  alien,  p.  91. 

§   5  a.  Appearance,  p.  91. 

§  5  b.  Qualification  as  to  citizenship,  p.  93. 

§   6.  Against  an  alien  and  a  citizen,  p.  95. 

§   6  a.  Injunction,  p.  96. 

§  6  b.  Final  determination  of  controversy,  p.  97. 

§  6  c.  Necessary  parties,  p.  98. 

§   7.  Prejudice  or  local  influence,  p.  100. 

§   7  a.  Statute  construed,  p.  101. 

§   7  b.  Prejudice  and  local  influence,  p.  101. 

§   8.  Proceedings  to  effect  removal,  p.  103. 

§   8  a.  Bail  defined,  p.  104. 

§   9.  Procedure  on  entry  of  copies  of  record,  p.  104. 

§  10.  Removal  Act  of  ISlo— civil  suits,  p.  104. 

§  10  a.  Suits  removable,  p.  105. 

§  10  b.  Suits  not  removable,  p.  107. 

§  10  c.  Actions  removable,  p.  108. 

§  10  d.  Suits  against  aliens,  p.  109. 

§  10  e.  By  amount  in  controversy,  p.  110. 

§  10  f .  Cases  under  Constitution,  laws,  or  treaties,  p.  111. 

§  10  g.  Suits  pending,  p.  113. 


CONTEXTS. 

§  10  h.  Ancillary  proceedings,  p.  114. 

§  10   i.  Controversies  between  parties,  p.  115. 

§  10   j.  Citizenship,  p.  117. 

§  10  k.  Citizenship  of  corporations,  p.  118. 

§  10  1.  Assignees,  p.  121. 

§  10  m.  Nominal  parties,  p.  123. 

§  10  n.  Inseparable  controversy,  p.  125. 

§  10  0.  The  whole  controversy  removed,  p.  128. 

§  10  p.  Decisions  under  Acts  of  1866, 1867,  p.  131. 

§  10  q.  Right  to  remove,  p.  133. 

§  11.  Removal  proceedings,  p.  135. 

§  11  a.  Application,  p.  136. 

§  11  b.  Petition,  p.  137. 

§  11  0.  Bond  and  security,  p.  142. 

§  11  d.  At  or  before  first  term,  p.  144. 

§  11  e.  When  cause  could  be  first  tried,  p.  147. 

§  11  f.  Time  under  prior  statutes,  p.  150. 

§  11  g.  Jurisdisdiction  of  circuit  court,  p.  153. 

§  11  h.  Proceedings  in  State  court,  p.  155. 

§  11   i.  Effect  of  proceedings  for  removal,  p.  157. 

§  11  j.  Order  of  removal,  p.  158. 

§  11  k.  Effect  of  removal,  p.  159. 

§  11   1.  Practice  and  procedure,  p.  160. 

§  12.  Land  titles  from  different  States,  p.  162. 

§  12  a.  Conflicting  land  grants,  p.  162. 

§  13.  Records  refused  by  clerk  of  State  court,  p.  164. 


CHAPTER    IV. 

PRACTICE  AND  PROCEDURE. 

§  14.  Time  to  file  record— clerk— certiorari,  p.  164. 

§  14  a.  The  record,  p.  165. 

§  14  b.  Time  to  file,  p.  166. 

§  14  c.  Duty  of  clerk,  p.  166. 

§  14  d.  Certiorari,  p.  167. 

§  15.  Attachments,  injunctions,  bonds,  p.  168. 

§  15  a.  In  general,  p.  169. 

§  15  b.  Attachments,  p.  169. 

§  15  c.  Injunction,  p.  170. 

§  16.  Process  not  aff'ected  by  removal,  p.  171. 

§  16  a.  Original  process,  p.  171. 

§  17.  Dismissal  and  remand,  p.  172. 

§  17  a.  Remanding  cause  for  want  of  jurisdiction,  p.  172. 

S  17    b.  Motion  to  rptnunrl    n    174 


§  17  b.    Motion  to  remand,  p.  174 


CONTENTS. 

§  17  c.  For  failure  to  file  record,  p.  176. 

§  17  d.  Sufficiency  of  bond,  p.  177. 

§  17  e.  Application  too  late,  p.  177. 

§  17  f.  Effect  of  remand,  p.  178. 

§  17  g.  Error  and  appeal,  p.  178. 

§  18.  Proceedings  on  case  removed,  p.  179. 

§  18  a.  Jurisdiction,  p.  180. 

§  18  b.  Procedure,  p.  181. 

§  18  c.  Autliority  of  court,  p.  182. 

§  19.  Issues  of  fact  tried  by  jury,  p.  183. 

§  19  a.  Trial  of  issue,  p.  184. 

§  20.  Issues  of  fact  tried  by  the  court,  p.  184. 

§  20  a.  AVaiver  of  jury  trial,  p.  18-1. 

§  20  b.  Findings  by  the  court,  p.  185. 

§  21.  Division  of  opinion  in  civil  causes,  p.  185. 

§  22.  Division  of  opinion  in  criminal  causes,  p.  186. 

§  23.  Certificate  of  division,  p.  187. 


CHAPTER  V. 

EEMOVAL  OF  CAUSES  IN  SPECIAL  CASES. 

Corporations  under  United  States  laws,  p.  1 

Denial  of  civil  rights,  p.  191. 

Denial  of  civil  rights,  p.  193. 

In  criminal  cases,  p.  194. 

In  general,  p.  195. 

Mabeas  corpus,  p.  196. 

Officers  of  revenue,  registration,  etc.,  p.  196. 

In  general,  p.  198. 

Suits  removable,  p.  199. 

Criminal  cases,  p.  200. 

Practice  and  procedure,  p.  201. 

Enforcing  removal,  p.  202. 

Aliens,  particular,  p.  203. 

From  courts  in  Georgia,  p.  203. 

From  courts  in  Ohio,  p.  203. 

From  courts  in  Tennessee,  p.  203. 

From  courts  in  Missouri,  p.  204. 

From  courts  in  Missouri,  p.  204. 

From  courts  in  Afissouri,  p.  205. 

From  courts  iti  Missouri,  p.  205. 

From  courts  in  New  York,  p.  209: 


§24. 

§25. 

§25  a. 

§  25  b. 

§25  c. 

§26. 

§27. 

§27  a. 

§27  b. 

§27  c. 

§27  d. 

§27  e. 

§28. 

§29. 

§30. 

§31. 

§32. 

§33. 

§34. 

§35. 

§36. 

Pbecedents— Table  op  Cases— Indbx. 


THE    STATUTES. 


THE  JUDICIARY  ACT. 
[Sec.  12  of  Act  of  September  24, 1789, 1  U.  S.  Stats.  79.] 

Sec.  12.  And  be  it  further  enacted.  That  if  a  suit  be  com- 
menced in  any  State  court  against  an  alien,  or  by  a  citizen 
of  tbe  State  in  which  the  suit  is  brought  against  a  citizen 
of  another  State,  and  the  matter  in  dispute  exceeds  the 
aforesaid  sum  or  value  of  five  hundred  dollars,  exclusive 
of  costs,  to  be  made  to  appear  to  the  satisfaction  of  the 
court;  and  the  defendant  shall,  at  the  time  of  entering 
his  appearance  in  such  State  court,  file  a  petition  for  the 
removal  of  the  cause  for  tiial  into  the  next  circuit  court 
to  be  held  in  the  district  where  the  suit  is  pending;  or  if  in 
the  district  of  Maine,  to  the  district  court  next  to  be  holden 
therein,  or  if  in  Kentucky  district,  to  the  district  court 
next  to  be  holden  therein,  and  offer  good  and  sufficient 
surety  for  his  entering  in  such  court,  on  the  first  day  of  its 
session,  copies  of  said  process  against  him,  and  also  for 
his  there  appearing  and  entering  special  bail  in  the  cause, 
if  special  bail  was  originally  requisite  therein — it  shall 
then  be  the  duty  of  the  State  court  to  accept  the  surety, 
and  proceed  no  further  in  the  cause  ;  and  any  bail  that 
may  have  been  origiuially  taken  shall  be  discharged,  and 
the  said  copies  being  entered  as  aforesaid  in  such  court 
of  the  United  States,  the  cause  shall  there  proceed  in  the 
same  manner  as  if  it  had  been  brought  there  by  original 
process. 

And  any  attachment  of  the  goods  or  estate  of  the  de- 
fendant by  the  original  process  shall  hold  the  goods  or 
Desty  Removal.— ». 


14  THE  JUDICIARY  ACT. 

estate  so  attached  to  answer  the  final  jud^^ment  in  the 
same  manner  as  by  the  laws  of  such  State  they  would 
have  been  holden  to  answer  final  judgment  had  it  been 
rendered  by  the  court  in  which  the  suit  commenced. 

And  if  in  any  action  commenced  in  a  State  court  the 
title  of  land  be  concerned,  and  the  parties  are  citizens 
of  the  same  State,  and  the  matter  in  dispute  exceeds  the 
sum  or  value  of  five  hundred  dollars,  exclusive  of  costs, 
the  sum  or  value  being  made  to  appear  to  the  satisfaction 
of  the  court,  either  party,  before  the  trial,  shall  state  to  the 
court,  and  make  afiidavit  if  they  require  it,  that  he  claims 
and  shall  rely  upon  a  right  or  title  to  the  land,  under  a 
grant  from  a  State  other  than  that  in  which  the  suit  is 
pending,  and  produce  the  original  grant  or  an  exemplifi- 
cation of  it,  except  where  the  loss  of  public  records  shall 
put  it  out  of  his  power,  and  shall  move  that  the  adverse 
party  inform  the  court,  whether  he  claims  a  right  or  title 
to  the  land  under  a  grant  from  the  State  in  which  the  suit 
is  pending;  the  said  adverse  [party]  shall  give  such  in- 
formation or  otherwise  not  be  allowed  to  plead  such  grant, 
or  give  it  in  evidence  itpon  the  trial  and  if  he  informs 
that  he  does  claim  under  such  grant,  the  party  claiming 
under  the  grant  first  mentioned  may  then,  on  motion,  re- 
move the  cause  for  trial  to  the  next  circuit  court  to  be 
holden  in  such  district;  or  if  in  the  district  of  Maine,  to  the 
court  next  to  beholden  therein;  or  if  in  Kentucky  dis- 
trict, to  the  district  court  next  to  be  holden  therein;  but 
if  he  is  the  defendant,  shall  do  it  under  the  same  regula- 
tions as  in  the  before-mentioned  case  of  the  removal  of  a 
cause  into  such  court  by  an  alien ;  and  neither  party  re- 
moving the  cause  shall  be  allowed  to  plead  or  give  evi- 
dence of  any  other  title  than  that  by  him  stated  as 
aforesaid  as  the  ground  of  his  claim;  and  the  trial  of 
issues  in  fact  in  the  circuit  courts  shall,  in  all  suits  ex- 
cept those  of  equity,  and  of  admiralty,  and  maritime 
jurisdiction,  be  by  jury. 

See  Key.  Stats.  §§  639,  646, 647,  64S;  and  sees.  4,  12,  15,  and  19  of  this 
book. 


REVENUE  ACT.  15 

REVENUE  ACT. 

[Sees.  3  and  4  of  Act  of  March  2, 1833,  4  U.  S.  Stats,  633, 634.] 

Sec.  3.  And  be  it  further  enacted.  That  iu  any  case 
where  suit  or  prosecution  shall  be  commenced  in  a  court 
of  any  State,  against  any  officer  of  the  United  States,  or 
other  person,  for  or  on  account  of  any  act  done  under  the 
revenue  laws  of  the  United  States,  or  under  color  thereof, 
or  for  or  on  account  of  any  right,  authority,  or  title  set 
lip  or  claimed  by  such  officer,  or  other  person  under  any 
such  law  of  the  United  States,  it  shall  be  lawful  for  the 
defendant  in  such  suit  or  x)rosecution,  at  any  time  before 
trial,  upon  a  petition  to  tlie  circuit  court  of  the  United 
States  in  and  for  the  district  in  which  the  defendant 
shall  have  been  served  with  process,  setting  forth  the 
nature  of  said  suit  or  prosecution,  and  verifying  the  said 
petition  by  affidavit,  together  with  a  certiflcate  signed  by 
an  attorney  or  counselor  at  law  of  some  court  of  record 
of  the  State  in  which  such  suit  shall  have  been  com- 
menced, or  of  the  United  States,  setting  forth  tliat,  as 
counsel  for  the  petitioner,  he  has  examined  the  proceed- 
ings against  him,  and  has  carefully  inquired  into  all  the 
matters  set  forth  in  the  petition,  and  that  he  believes  the 
same  to  be  true ; 

Which  petition,  affidavit,  and  certiiicate  shall  be  pre- 
sented to  the  said  circuit  court,  if  in  session,  and  if  not, 
to  the  clerk  thereof  at  his  office,  and  shall  be  tiled  in  said 
office,  and  the  cause  shall  thereupon  be  entered  on  the 
docket  of  said  court,  and  shall  be  thereafter  proceeded  in 
Jis  a  cause  originally  commenced  in  that  court; 

And  it  shall  be  the  duty  of  the  clerk  of  said  court,  if 
the  suit  were  commenced  in  the  court  below  by  summons, 
to  issue  a  writ  of  certiorari  to  the  State  court,  requiring 
said  court  to  send  to  the  said  circuit  court  the  record  and 
l>roceedings  in  said  cause; 

Or  if  it  were  commenced  by  capias,  he  sliall  issue  a  writ 
of  habeas  corpus  cum  causa,  a  duplicate  of  which  said  writ 


16  EEVENUE  ACT. 

shall  be  delivered  to  the  clerk  of  the  State  court,  or  left 
at  his  office  by  the  marshal  of  the  district,  or  his  deputy, 
or  some  person  duly  authorized  thereto ; 

And  thereupon  it  shall  be  the  duty  of  the  said  State  court 
to  stay  all  further  proceedings  in  such  cause,  and  the 
said  suit  or  prosecution,  upon  delivery  of  such  process, 
or  leaving  the  same  as  aforesaid,  shall  be  deemed  and 
taken  to  be  moved  to  the  said  circuit  court,  and  any  fur- 
ther proceedings,  trial,  or  judgment  therein  in  the  State 
court  shall  be  wholly  null  and  void. 

And  if  the  defendant  in  any  such  suit  be  in  actual  cus- 
tody on  mesne  process  therein,  it  shall  be  the  duty  of  the 
marshal,  by  virtue  of  the  writ  of  habeas  corpus  cum  causa, 
to  take  the  body  of  the  defendant  into  his  custody,  to  be 
dealt  with  in  the  said  cause  according  to  the  rules  of  law 
and  the  order  of  the  circuit  court,  or  of  any  judge  there- 
of, in  vacation. 

And  all  attachments  made  and  all  bail  and  other  secu- 
rity given  upon  such  suit  or  prosecution  shall  be  and 
continue  in  like  force  and  effect  as  if  the  same  suit  or 
prosecution  had  proceeded  to  final  judgment  and  execu- 
tion in  the  State  court. 

And  if,  upon  the  removal  of  any  such  suit  or  prosecu- 
tion, it  shall  be  made  to  appear  to  the  said  circuit  court 
that  no  copy  of  the  record  and  proceedings  therein,  in  the 
State  court,  can  be  obtained,  it  shall  be  lawful  for  said 
circuit  court  to  allow  and  require  the  plaintiff  to  proceed 
de  novo,  and  to  file  a  declaration  of  his  cause  of  action, 
and  the  parties  may  thereupon  preceed  as  in  actions  orig- 
inally brought  in  said  circuit  court. 

And  on  failure  of  so  laroceeding,  judgment  of  non  prose- 
quitur may  be  rendered  against  the  plaintiff,  with  costs 
for  the  defendant. 

Sec.  4.  And  he  it  further  enacted,  That  in  any  case  in 
which  any  party  is,  or  may  be  by  law,  entitled  to  copies 
of  the  record  and  proceedings  in  any  suit  or  prosecution 
in  any  State  court,  to  be  used  in  any  court  of  the  United 


REVENUE  ACT.  17 

States,  if  the  clerk  of  said  State  court  shall,  upon  de- 
mand and  the  payment  or  tender  of  the  legal  fees,  refuse 
or  neglect  to  deliver  to  such  party  certified  copies  of  such 
record  and  proceedings,  the  court  of  the  United  States  in 
which  such  record  and  proceedings  may  be  needed,  on 
proof,  by  afi&davit,  that  the  clerk  of  such  State  court  has 
refused  or  neglected  to  deliver  copies  thereof,  on  demand 
as  aforesaid,  may  direct  and  allow  such  record  to  be  sup- 
plied by  affidavit,  or  otherwise,  as  the  circumstances  of 
the  case  may  require  and  allow. 

And  thereupon,  such  iiroceeding,  trial,  and  judgment 
may  be  had  in  the  said  court  of  the  United  States,  and  all 
such  processes  awarded,  as  if  certified  copies  of  such  rec- 
ords and  proceedings  had  been  regularly  before  the  said 
court. 

See  Rev.  Stats.  §§  643,  646,  645;  and  sees.  27, 15,  and  13  of  this  book. 

REVENUE  ACT. 

[Sees.  67,  68,  Act  of  July  13, 1866, 14  U.  S.  Stats,  in,  172.] 

Sec.  67.  And  be  it  further  enacted,  That  in  any  case, 
civil  or  criminal,  where  suit  or  prosecution  shall  be 
commenced  in  any  court  of  any  State  against  any  officer 
of  the  United  States,  appointed  under  or  acting  by 
authority  of  the  act  entitled  "  An  act  to  provide  internal 
revenue  to  support  the  government,  to  pay  interest  on 
the  public  debt,  and  for  other  purposes,"  passed  June 
thirtieth,  eighteen  hundred  and  sixty-four,  or  of  any  act 
in  addition  thereto,  or  in  amendment  thereof,  or  against 
any  person  acting  under  or  by  authority  of  any  such 
officer  on  account  of  any  act  done  under  color  of  his 
office,  or  against  any  person  holding  property  or  estate 
by  title  derived  from  any  such  officer,  concerning  such 
property  or  estate,  and  affecting  the  validity  of  this  act 
or  acts  of  which  it  is  amendatory,  it  shall  be  lawful  for 
the  defendant  in  such  suit  or  prosecution,  at  any  time 
before  trial,  upon  a  petition  to  the  circuit   court  of  the 


18  REVENUE  ACT. 

United  States  in  and  for  the  district  in  wlricli  the  defend- 
ant shall  have  been  served  with  process,  setting  forth  the 
nature  of  said  suit  or  prosecution,  and  verifying  the  said 
petition  by  affidavit,  together  with  a  certificate,  signed  by 
an  attorney  or  counselor  at  law  of  some  court  of  record 
of  the  State  in  which  such  suit  shall  have  been  com- 
menced, or  of  the  United  States,  setting  forth  that,  as 
counsel  for  the  petitioner,  he  has  examined  the  proceed- 
ings against  hira,  and  carefully  inquired  into  all  the 
matters  set  forth  in  the  petition,  and  that  he  believes 
the  same  to  be  true ;  which  petition,  affidavit,  and  certifi- 
cate shall  be  presented  to  the  said  circuit  court  if  in 
session,  and  if  not,  to  the  clerk  thereof  at  his  office,  and 
shall  be  filed  in  said  office,  and  the  cause  shall  thereupon 
be  entered  on  the  docket  of  said  court,  and  shall  be 
thereafter  proceeded  in  as  a  cause  originally  commenced 
in  that  court ;  and  it  shall  be  the  duty  of  the  clerk 
of  said  court,  if  the  suit  were  commenced  in  the  court 
below  by  summons,  to  issue  a  writ  of  certiorari  to  the 
State  court,  requiring  said  court  to  send  to  the  said 
circuit  court  the  record  and  proceeding  in  said  cause;  or 
if  it  were  commenced  by  capias,  he  shall  issue  a  writ  of 
habeas  corpus  cum  causa,  a  duplicate  of  which  said  writ 
shall  be  delivered  to  the  clerk  of  the  State  court,  or  left 
at  his  office,  by  the  marshal  of  the  district,  or  his  deputy, 
or  some  person  duly  authorized  thereto ;  and  thereupon 
it  shall  be  the  duty  of  the  said  State  court  to  stay  all 
further  proceedings  in  such  cause,  and  the  said  suit  or 
prosecution,  upon  deliver 3^  of  such  process,  or  leaving 
the  same  as  aforesaid,  shall  be  deemed  and  taken  to  be 
moved  to  the  said  circuit  court,  and  any  further  proceed- 
ings, trial,  or  judgment  therein  in  the  State  court  shall 
be  wholly  null  and  void. 

And  if  the  defendant  in  any  such  suit  be  in  act- 
ual custody  on  mesne  process  therein,  it  shall  be  the 
duty  of  the  marshal,  by  virtue  of  the  writ  of  habeas 
corpus  cum  causa,  to  take  the  body  of  the  defendant 


REVENUE  ACT.  19 

into  his  custody,  to  be  dealt  with  in  the  said  cause  accord- 
ing to  the  rules  of  law,  and  the  order  of  the  circuit  court, 
or  of  any  judge  thereof  in  vacation. 

All  attachments  made,  and  all  bail  and  other  security 
given,  upon  such  suit  or  prosecution  shall  be  and  continue 
in  like  force  and  effect  as  if  the  same  suit  or  prosecution 
had  proceeded  to  final  judgment  and  execution  in  the 
State  court;  and  if,  upon  removal  of  any  such  suit  or 
prosecution,  it  shall  be  made  appear  to  the  said  circuit 
court  that  no  copy  of  the  record  and  proceedings  therein 
in  the  State  court  can  be  obtained,  it  shall  be  lawful  for 
said  circuit  court  to  allow  and  require  the  plaintiff  to 
proceed  de  novo,  and  to  file  a  declaration  of  his  cause  and 
action,  and  the  parties  may  thereupon  proceed  as  in 
action[s]  originally  brought  in  said  circuit  court;  and,  on 
failure  of  so  proceeding,  judgment  of  nolle  prosequi  may 
be  rendered  against  the  i^laintiff,  with  costs  for  the  de- 
fendant; provided,  that  an  act  entitled  "  An  act  further 
to  provide  for  the  collection  of  duty  on  imports,"  passed 
March  second,  eighteen  hundred  and  thirty-three,  shall 
not  be  so  construed  as  to  apply  to  cases  arising  under  an 
act  entitled  "An  act  to  provide  internal  revenue  to 
support  the  government,  to  pay  interest  on  the  public 
debt,  and  for  other  purposes,"  passed  June  thirtieth, 
eighteen  hundred  and  sixty-four,  or  any  act  in  addition 
thereto,  or  in  amendment  thereof,  nor  to  any  case  in 
which  the  validity  or  interpretation  of  said  act  or  acts 
shall  be  in  issue;  provided  further,  that  if  any  officer 
appointed  under  and  by  virtue  of  any  act  to  provide 
internal  revenue,  or  any  person  acting  under  or  by 
authority  of  any  such  officer,  shall  receive  any  injury  to 
his  person  or  property,  for  or  on  account  of  any  act  by 
him  done,  under  any  law  of  the  United  States,  for  the 
collection  of  taxes,  he  shall  be  entitled  to  maintain  suit 
for  damage  therefor  in  the  circuit  court  of  the  United 
States  in  the  district  wherein  the  party  doing  the  injury 
may  reside  or  shall  be  found. 


20  ke\t:xue  act. 

And  all  property  taken  or  detained  by  any  officer  or 
other  person,  under  authority  of  any  revenue  law  of  the 
United  States,  shall  be  irrepleviable,  and  shall  be  deemed 
to  be  in  the  custody  of  the  law,  and  subject  only  to  the 
orders  and  decrees  of  the  courts  of  the  United  States 
having  jurisdiction  thereof. 

And  if  any  person  shall  dispossess  or  rescue,  or  attempt 
to  dispossess  or  rescue,  any  property  so  taken  or  detained 
as  aforesaid,  or  shall  aid  or  assist  therein,  such  person 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be 
liable  to  such  punishment  as  is  provided  by  the  twenty- 
second  section  of  the  act  for  the  punishment  of  certain 
crimes  against  the  United  States,  approved  the  thirtieth 
day  of  April,  Anno  Domini  one  thousand  seven  hun- 
dred and  ninety,  for  the  willful  obstruction  or  resistance 
of  officers  in  the  service  of  process. 

Sec.  68.  And  be  it  further  enacted,  That  the  fiftieth 
section  of  an  act  passed  June  30th,  eighteen  hundred  and 
sixty-four,  entitled  "An  act  to  provide  internal  revenue 
to  support  the  government,  to  pay  interest  on  the  public 
debt,  and  for  other  purposes,"  is  hereby  repealed;  pro- 
vided, that  any  case  which  may  have  been  removed  from 
the  courts  of  any  State,  under  said  fiftieth  section,  to  the 
courts  of  the  United  States,  shall  be  remanded  to  the 
State  court  from  which  it  was  so  removed,  with  all  the 
records  relating  to  such  cases,  unless  the  justice  of  the 
circuit  court  of  the  United  States  in  which  such  suit  or 
prosecution  is  pending  shall  be  of  opinion  that  said  case 
would  be  removable  from  the  court  of  the  State  to  the 
circuit  court  under  and  by  virtue  of  the  sixty-seventh 
section  of  this  act. 

And  in  all  cases  which  may  have  been  removed  from 
any  court  of  any  State,  under  and  by  virtue  of  said  fif- 
tieth section  of  said  act  of  June  thirtieth,  eighteen  hun- 
dred and  sixty  four,  all  attachments  made,  and  all  bail 
or  other  security  given  upon  such  suit  or  prosecution, 
shall  be  and  continue  in  full  force  and  effect  until  final 


HABEAS  CORPUS  ACT.  21 

judgment  and  execution,   whether  such    suit  shall    be 
prosecuted  to  final  judgment  in  the  circuit  court  of  the 
United  States,  or  remanded  to  the  State  court  from  which 
it  was  removed. 
See  Rev.  Stats.  §§  629, 643,  646;  and  sees.  27  and  15  of  this  book. 

HABEAS  CORPUS  ACT. 

[Sec.  5  of  Act  of  March  3, 1863, 12  U.  S.  Stats.  756,  757.] 

Sec.  5.  And  be  it  further  enacted,  That  if  any  suit  or 
prosecution,  civil  or  criminal,  has  been  or  shall  be  com- 
menced in  any  State  court  against  any  officer,  civil  or 
military,  or  against  any  other  person,  for  any  arrest  or 
imprisonment  made,  or  other  trespasses  or  wrongs  done 
or  committed,  or  any  act  omitted  to  be  done,  at  any  time 
during  the  present  rebellion,  by  virtue  or  under  color  of 
any  authority  derived  from  or  exercised  by  or  under  the 
President  of  the  United  States,  or  any  act  of  Congress, 
and  the  defendant  shall,  at  the  time  of  entering  his  ap- 
pearance in  such  court,  or  if  such  appearance  shall  have 
been  entered  before  the  passage  of  this  act,  then  at  the 
next  session  of  the  court  in  which  such  suit  or  prosecution 
is  pending,  file  a  petition,  stating  the  facts  and  verified  by 
affidavit,  for  the  removal  of  the  cause  for  trial  at  the  next 
circuit  court  of  the  United  States  to  be  holden  in  the  dis- 
trict where  the  suit  is  pending,  and  offer  good  and  suffi- 
cient surety  for  liis  filing  in  such  court,  on  the  first  day  of 
its  session,  cojiies  of  such  i:>rocess  and  other  proceedings 
against  him,  and  also  for  his  appearing  in  such  court  and 
entering  special  bail  in  the  cause,  if  special  bail  was  orig- 
inally required  therein. 

It  shall  then  be  the  duty  of  the  State  court  to  accept  the 
surety  and  proceed  no  farther  in  the  cause  or  prosecution, 
and  the  bail  that  shall  have  been  originally  taken  shall 
be  discharged. 

And  such  copies  being  filed  as  aforesaid  in  such  court 
of  the  United  States,  the  cause  shall  proceed  therein  in  the 


22  HABEAS  CORPUS  ACT. 

same  manner  as  if  it  had  "been  brought  in  said  court  by 
original  process,  whatever  may  be  the  amount  in  dispute 
or  the  damages  claimed,  or  whatever  the  citizenship  of  the 
parties,  any  former  law  to  the  contrary  notwithstanding. 

And  any  attachment  of  the  goods  or  estate  of  the  de- 
fendant by  the  original  i3rocess  shall  hold  the  goods  or 
estate  so  attached  to  answer  the  final  judgment  in  the 
same  manner  as  by  the  laws  of  such  State  they  would 
have  been  holden  to  answer  final  judgment  had  it  been 
rendered  in  the  court  in  which  the  suit  or  x)rosecution  was 
commenced. 

And  it  shall  be  lawful  in  any  such  action  or  jirosecution 
which  may  be  now  pending,  or  hereafter  commenced,  be- 
fore any  State  court  whatever,  for  any  cause  aforesaid, 
after  final  judgment,  for  either  party  to  remove  and  trans- 
fer, by  appeal,  such  case  during  the  session  or  term  of 
said  court  at  which  the  same  shall  have  taken  place,  from 
such  court  to  the  next  circuit  court  of  the  United  States 
to  be  held  in  the  district  in  which  such  appeal  shall  be 
taken,  in  manner  aforesaid. 

And  it  shall  be  the  duty  of  the  person  taking  such 
appeal  to  produce  and  file  in  the  said  circuit  court  attested 
copies  of  the  process,  proceedings,  and  judgment  in  such 
cause;  and  it  shall  also  be  competent  for  either  party, 
within  six  months  after  the  rendition  of  a  judgment  in 
any  such  cause,  by  writ  of  error  or  other  process,  to  re- 
move the  same  to  the  circuit  court  of  the  United  States  of 
that  district  in  which  such  judgment  shall  have  been  ren- 
dered; and  the  said  circuit  court  shall  thereupon  proceed 
to  try  and  determine  the  facts  and  the  law  in  such  action, 
in  the  same  manner  as  if  the  same  had  been  there  orig- 
inally commenced,  the  judgment  in  such  case  notwith- 
standing. 

And  any  bail  which  may  have  been  taken,  or  property 
attached,  shall  be  holden  on  the  final  judgment  of  the 
said  circuit  court  in  such  action,  in  the  same  manner  as  if 
no  such  removal  and  transfer  had  been  made  as  afore- 
said. 


AilEXDMEXT   TO  HABEAS   COKPUS  ACT.  23 

And  the  State  court  from  which  any  such  action,  civil 
or  criminal,  may  be  removed  and  transferred  as  aforesaid, 
ujion  the  parties  giving  good  and  sufficient  security  for 
the  prosecution  thereof,  shall  allow  the  same  to  be  re- 
moved and  transferred,  and  proceed  no  farther  in  the  case; 
provided,  hoicever,  that  if  the  party  aforesaid  shall  fail 
dulj^  to  enter  the  removal  and  transfer,  as  aforesaid,  in 
the  circuit  court  of  the  United  States,  agreeably  to  this 
act,  the  State  court  by  which  judgment  shall  have  been 
rendered,  and  from  which  the  transfer  and  removal  shall 
have  been  made,  as  aforesaid,  shall  be  authorized,  on 
motion  for  that  purpose,  to  issue  execution,  and  to  carry 
into  effect  any  such  judgment,  the  same  as  if  no  such  re- 
moval and  transfer  had  been  made. 

And  provided  also,  That  no  such  appeal  or  writ  of  error 
shall  be  allowed  in  any  criminal  action  or  prosecution 
where  final  judgment  shall  have  been  rendered  in  favor 
of  the  defendant  or  respondent  by  the  State  court. 

And  if  in  any  suit  hereafter  commenced  the  plaintiff  is 
non-suited  or  judgment  passed  against  him,  the  defend- 
ant shall  recover  double  costs. 
See  Rev.  Stats.  §§  641,  642, 646;  and  sees.  23.  26,  and  15  of  this  book. 

AJVIENDMENT   TO  HABEAS  COEPUS  ACT. 

[Sees.  3,  4,  and  5,  Act  of  May  11, 1866, 14  U.  S.  Stats.  46,  47.] 

Sec.  3.  And  he  it  further  enacted,  That  the  right  of 
removal  from  the  State  court  into  the  circuit  court  of 
the  United  States,  provided  in  the  fifth  section  of  the  act 
to  which  this  is  amendatory,  may  be  exercised  after  the 
appearance  of  the  defendant,  and  the  filing  of  his  plea  or 
other  defense  in  said  court,  or  at  any  term  of  said  court 
subsequent  to  the  term  when  the  appearance  is  entered, 
and  before  a  jury  is  empanneled  to  try  the  same;  but 
nothing  herein  contained  shall  be  held  to  abridge  the 
right  of  such  removal  after  final  judgment  in  the  State 
court,  nor  shall  it  be  necessary  in  the  State  court  to  offer 
or  give  surety  for  the  filing  of  copies  in  the  circuit  court 


24  AaiENDMEXT  TO  HABEAS  CORPUS  ACT. 

of  the  United  States;  but,  on  the  filing  of  the  petition, 
verified  as  provided  in  said  fifth  section,  the  further 
proceedings  in  the  State  court  shall  cease,  and  not  be 
resumed  until  a  certificate,  under  the  seal  of  the  circuit 
court  of  the  United  States,  stating  that  the  petitioner  has 
failed  to  file  copies  in  the  said  circuit  court  at  the  next 
term,  is  produced. 

Sec.  4.  And  be  it  further  enacted.  That  if  the  State 
court  shall,  notwithstanding  the  performance  of  all 
things  required  for  the  removal  of  the  case  to  the  circuit 
court  aforesaid,  proceed  farther  in  said  cause  or  prosecu- 
tion before  said  certificate  is  produced,  then,  in  that  case, 
all  such  further  proceedings  shall  be  void  and  of  none 
effect;  and  all  parties,  judges,  officers,  and  other  persons 
thenceforth  proceeding  thereunder,  or  by  color  thereof, 
shall  be  liable  in  damages  therefor  to  the  party  ag- 
grieved, to  be  recovered  by  action  in  a  court  of  the  State 
having  proper  jurisdiction,  or  in  a  circuit  court  of  the 
United  States  for  the  district  in  which  such  further 
proceedings  may  have  been  had,  or  where  the  party, 
officer,  or  other  person  so  offending  shall  be  found;  and 
upon  a  recovery  of  damages  in  either  court,  the  party 
plaintiff  shall  be  entitled  to  double  costs. 

Sec.  5.  And  be  it  further  enacted,  That  it  shall  be  the 
duty  of  the  clerk  of  the  State  court  to  furnish  copies  of 
the  papers  and  files  in  the  case  to  the  party  so  petitioning 
for  the  removal;  and  upon  the  refusal  or  neglect  of  the 
clerk  to  furnish  such  copies,  the  said  party  may  docket 
the  case  in  the  circuit  court  of  the  United  States;  and 
thereupon  said  circuit  court  shall  have  jurisdiction  there- 
in, and  may,  upon  proof  of  such  refusal  or  neglect  of  the 
clerk  of  the  State  court,  and  upon  reasonable  notice 
being  given  to  the  plaintiff,  require  him  to  file  a  declara- 
tion or  petition  therein;  and  upon  his  default  may  order 
a  nonsuit,  and  dismiss  the  case  at  the  costs  of  the  plaint- 
iff, which  dismissal  shall  be  a  bar  to  any  further  suit 
touching  the  matter  in  controversy. 
See  Bev.  Stats.  §  §  641 ,  642, 646 ;  aud  sees .  25,  26,  and  15  of  this  book. 


REMOVAL  ACT  OF  1866.  25 

EEMOVAL  ACT  OF   1866. 
[Act  of  July  27, 1866, 14  U.  S.  Stats.  306.  307.] 

Be  it  enacted  bij  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled. 
That  if  in  any  suit  already  commenced,  or  that  may  here- 
after he  commenced,  in  any  State  court  against  an  alien, 
or  by  a  citizen  of  the  State  in  which  the  suit  is  brought 
against  a  citizen  of  another  State,  and  the  matter  in 
dispute  exceeds  the  sum  of  five  hundred  dollars,  exclu- 
sive of  costs,  to  be  made  to  appear  to  the  satisfaction  of 
the  court,  a  citizen  of  the  State  in  which  the  suit  is 
brought  is  or  shall  be  a  defendant,  and  if  the  suit  so  far 
as  relates  to  the  alien  defendant  or  to  the  defendant  who 
is  the  citizen  of  a  State  other  than  that  in  which  the  suit 
is  brought,  is  or  has  been  instituted  or  prosecuted  for 
the  purpose  of  restraining  or  enjoining  him,  or  if  the  suit 
is  one  in  which  there  can  be  a  final  determination  of  the 
controversy,  so  far  as  it  concerns  him,  without  the  pres- 
ence of  the  other  defendants  as  parties  in  the  cause,  then 
and  in  every  such  case  the  alien  defendant,  or  the  defend- 
ant who  is  a  citizen  of  a  State  other  than  that  in  which 
the  suit  is  brought,  may,  at  any  time  before  the  trial  or 
final  hearing  of  the  cause,  file  a  petition  for  the  removal 
of  the  cause  as  against  him  into  the  next  circuit  court  of 
the  United  States  to  be  held  in  the  district  where  the 
suit  is  pending,  and  offer  good  and  sufficient  surety  for 
his  entering  in  such  court,  on  the  first  day  of  its 
session,  copies  of  said  process  against  him,  and  of  all 
pleadings,  depositions,  testimony,  and  other  proceedings 
in  said  cause  affecting  or  concerning  him,  and  also  for 
his  there  appearing  and  entering  special  bail  in  the  cause, 
if  special  bail  was  originally  requisite  therein;  and  it 
shall  be  thereupon  the  duty  of  the  State  court  to  accept 
the  surety,  and  proceed  no  farther  in  the  cause  as 
against  the  defendant  so  applying  for  its  removal;  and 
any  bail  that  may  have  been  originally  taken  shall  be 

Desty  Removal.— 3. 


26  REMOVAL  ACT  OF  1866. 

discharged,  and  the  said  copies  being  entered  as  afore- 
said in  such  court  of  the  United  States,  the  cause  shall 
there  proceed  in  the  same  manner  as  if  it  had  been 
brought  there  by  original  process  against  the  defendant 
who  shall  have  so  filed  a  petition  for  its  removal  as 
above  provided. 

And  any  attachment  of  the  goods  or  estate  of  the 
defendant  by  the  original  process  shall  hold  the  goods  or 
estate  so  attached  to  answer  the  final  judgment,  in  the 
same  manner  as  by  the  laws  of  such  State  they  would 
have  been  holden  to  answer  final  judgment  had  it  been 
rendered  by  the  court  in  which  the  suit  commenced;  and 
any  injunction  granted  before  the  removal  of  the  cause 
against  the  defendant  applying  for  its  removal  shall 
continue  in  force  until  modified  or  dissolved  by  the 
United  States  Court  into  which  the  cause  shall  be  re- 
moved; and  any  bond  of  idemnity  or  other  obligation 
given  by  the  plaintiff  upon  the  issuing  or  granting  of  any 
attachment,  writ  of  injunction,  or  other  restraining 
process  against  the  defendant  petitioning  for  the  removal 
of  the  cause,  shall  also  continue  in  full  force,  and  may 
be  prosecuted  by  the  defendant,  and  made  available  for 
his  idemnity  in  case  the  attachment,  injunction,  or  other 
restraining  process  be  set  aside  or  dissolved,  or  judgment 
be  rendered  in  his  favor,  in  the  same  manner  and  with 
the  same  force  and  effect  as  if  such  injunction,  attach- 
ment, or  restraining  process  had  been  granted,  and  such 
bond  had  been  originally  filed  or  given  in  the  court  to 
which  the  cause  is  removed. 

And  such  removal  of  the  cause,  as  against  the  defend- 
ant petitioning  therefor,  into  the  United  States  court, 
shall  not  be  deemed  to  prejudice  or  take  away  the  right 
of  the  plaintiff  to  proceed  at  the  same  time  with  the  suit 
in  the  State  court  as  against  the  other  defendants,  if  he 
shall  desire  to  do  so. 

And  the  copies  of  all  jileadings  filed  or  entered  as 
aforesaid  in  the  United  States  court,  by  the  defendant 


AME^'DMENT  TO  REMOVAL  ACT   OF  1866.  27 

applying  for  the  removal  of  the  cause,  shall  have  the 
same  force  and  effect  in  every  respect  and  for  every 
purpose  as  the  original  pleadings  would  haA^e  had  by  the 
laws  and  practice  of  the  courts  of  such  State  if  the  cause 
had  remained  in  the  State  court. 
See  Rev.  Stats.  §§  639,  640, 636;  and  sees.  4-9  of  this  book. 

A]\IENDMENT  TO  REMOVAL  ACT  OF  1867. 

[Act  of  March  2, 1867, 14  U.  S.  Stats.  558,  559.] 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  the  act  entitled  "  An  act  for  the  removal  of  causes 
in  certain  cases  from  State  courts,"  approved  July 
twenty-seventh,  eighteen  hundred  and  sixty-six,  be  and 
the  same  is  hereby  amended  as  follows:  That  where  a 
suit  is  now  pending,  or  may  hereafter  be  brought  in  any 
State  court,  in  which  there  is  controversy  between  a 
citizen  of  the  State  in  which  the  suit  is  brought  and  a 
citizen  of  another  State,  and  the  matter  in  dispute 
exceeds  the  sum  of  five  hundred  dollars,  exclusive  of 
costs,  such  citizen  of  another  State,  whether  he  be  plaint- 
iff or  defendant,  if  he  will  make  and  file  in  such  State 
Court  an  affidavit  stating  that  he  has  reason  to  and  does  be- 
lieve that  from  prejudice  or  local  influence  he  will  not  be 
able  to  obtain  justice  in  such  State  court,  may,  at  any 
time  before  the  final  hearing  or  trial  of  the  suit,  file  a 
petition  in  such  State  court  for  the  removal  of  the  suit 
into  the  next  circuit  court  of  the  United  States  to  be  held 
in  the  district  where  the  suit  is  pending,  and  offer  good 
and  sufficient  surety  for  his  entering  in  such  court,  on 
the  first  day  of  its  session,  copies  of  all  process,  plead- 
ings, depositions,  testimony,  and  other  iDroceedings  in 
said  suit,  and  doing  such  other  appropriate  acts  as,  by 
the  act  to  which  this  act  is  amendatory,  are  required  to 
be  done  upon  the  removal  of  a  suit  into  the  United  States 
court;  and  it  shall  be  thereupon  the  duty  of  the  State 


28  REMOVAL  BY  CORPORATIONS. 

court  to  accept  the  surety,  and  proceed  no  farther  in  the 
suit;  and  the  said  copies  being  entered  as  aforesaid  in 
such  court  of  the  United  States,  the  suit  shall  there  pro- 
ceed in  the  same  manner  as  if  it  had  been  brought  there 
by  original  process;  and  all  the  provisions  of  the  act  to 
which  this  act  is  amendatory,  respecting  any  bail, 
attachment,  injunction,  or  other  restraining  process,  and 
respecting  any  bond  of  idemnity,  or  other  obligation 
given  upon  the  issuing  or  granting  of  any  attachment, 
injunction,  or  other  restraining  process,  shall  apply  with 
like  force  and  effect  in  all  respects  to  similar  matters, 
jirocess,  or  things  in  the  suits  for  the  removal  of  which 
this  act  provides. 
See  Rev.  Stats.  §§  639, 646;  aud  sees.  4,  5,  6,  7,  8,  0,  and  15  of  this  book. 

REMOVAL  BY  CORPORATIONS. 

[Sec.  2  of  Act  of  July  27,  1868, 15  U.  S.  Stats.  227.] 

Sec.  2.  And  be  it  further  enacted,  That  any  corporation, 
or  any  member  thereof,  other  than  a  banking  corporation, 
organized  under  a  law  of  the  United  States,  and  against 
which  a  suit  at  law  or  in  equity  has  been  or  may  be  com- 
menced in  any  court  otlier  than  a  circuit  or  district  court 
of  the  United  States,  for  any  liability  or  alleged  liability 
of  such  corporation,  or  any  member  thereof  as  such  mem- 
ber, may  have  such  suit  removed  from  the  court  in  which 
it  may  be  pending,  to  the  proper  circuit  or  district  court 
of  the  United  States,  uj)on  filing  a  petition  therefor,  veri- 
fied by  oath,  either  before  or  after  issue  joined,  stating 
they  have  a  defense  arising  under  or  by  virtue  of  the 
Constitution  of  the  United  States,  or  any  treaty  or  law  of 
the  United  States,  and  olfering  good  and  sufficient  surety 
for  entering  in  such  court  on  the  first  day  of  its  session, 
copies  of  all  process,  pleadings,  disjoositions,  testimony, 
and  other  proceedings  in  said  suit,  and  doing  such  other 
appropriate  acts  as  are  required  to  be  done  by  the  act  en'* 
titled  "  An  aet  for  the  removal  of  causes  in  certain  cases 


CIVIL  EIGHTS  ACT.  29 

from  State  courts,"  approved  July  twenty-seventh,  eigh- 
teen hundred  and  sixty-six;  and  it  shall  be  thereupon 
the  duty  of  the  court  to  accept  the  surety  and  proceed  no 
farther  in  the  suit;  and  the  said  topics  being  entered  as 
aforesaid  in  such  court  of  the  United  States,  the  suit  shall 
then  proceed  in  the  same  manner  as  if  it  had  been  brought 
there  by  original  process,  and  all  the  provisions  of  said 
act  in  this  section  referred  to,  respectiug  any  bail,  attach- 
ment, injunction,  or  other  restraining  process,  and  re- 
specting any  bond  of  indemnity  or  other  obligation  given 
upon  the  issuing  or  granting  of  any  attachment,  injunc- 
tiou,  or  other  restraining  process,  shall  apply  with  like 
force  and  effect  in  all  respects  to  similar  matters,  process, 
or  things  in  the  suits  for  the  removal  of  which  this  act 
provides. 
See  Rev.  Stats  5§  640,  646;  and  sees.  24  and  15  of  this  book. 

CIVIL  RIGHTS  ACT. 

[Sec.  3  of  Act  of  April  9,  1866, 14  U.  S.  StatS,  27.] 

Sec.  3.  And  be  it  further  enacted,  That  the  district 
courts  of  the  United  States,  within  their  respective  dis- 
tricts, shall  have,  exclusively  of  the  courts  of  the  several 
States,  cognizance  of  all  crimes  and  offenses  committed 
against  the  provisions  of  this  act,  and  also,  concurrently 
with  the  circuit  courts  of  the  United  States,  of  all  causes, 
civil  and  criminal,  affecting  persons  who  are  denied  or 
cannot  enforce  in  the  courts  or  judicial  tribunals  of  the 
State  or  locality  where  they  may  be  any  of  the  rights 
secured  to  them  by  the  tirst  section  of  this  act  ;  and  if 
any  suit  or  prosecution,  civil  or  criminal,  has  been  or 
shall  be  commenced  in  any  State  court  against  any  such 
person,  for  any  cause  whatsoever,  or  against  any  officer, 
civil  or  military,  or  other  person,  for  any  arrest  or  im- 
prisonment, trespasses,  or  wrongs  done  or  committed  by 
virtue  or  under  color  of  authority  derived  from  this  act 
or  the  act  establishing  a  bureau  for  the  relief  of  freed- 


oO  CIVIL  RIGHTS. 

men  and  refugees,  and  all  acts  amendatory  thereof,  or  for 
refusing  to  do  any  act  upon  the  ground  that  it  would  he 
inconsistent  with  this  act,  such  defendant  shall  have  the 
right  to  remove  such  cause  for  trial  to  the  proper  district 
or  circuit  court,  in  the  manner  prescribed  by  the  "Act 
relating  to  habeas  corj)us,  and  regulating  judicial  pro- 
ceedings in  certain  cases,"  approved  March  three, 
eighteen  hundred  and  sixty-three,  and  all  acts  amenda- 
tory thereof. 

The  jurisdiction  in  civil  and  criminal  matters  hereby 
conferred  on  the  district  and  circuit  courts  of  the  United 
States  shall  be  exercised  and  enforced  in  conformity 
with  the  laws  of  the  United  States,  so  far  as  such  laws 
are  suitable  to  carry  the  same  into  effect;  but  in  all  cases 
where  such  laws  are  not  adapted  to  the  object,  or  are 
deficient  in  the  provisions  necessary  to  furnish  suitable 
remedies  and  punish  offenses  against  law,  the  common 
law,  as  modified  and  changed  by  the  Constitution  and 
statutes  of  the  State  wherein  the  court  having  jurisdic- 
tion of  the  cause,  civil  or  criminal,  is  held,  so  far  as  the 
same  is  not  inconsistent  with  the  Constitution  and  laws 
of  the  United  States,  shall  be  extended  to  and  govern 
said  courts  in  the  trial  and  disposition  of  such  cause,  and, 
if  of  a  criminal  nature,  in  the  infliction  of  punishment  on 
the  party  found  guilty. 

See  Kev.  Stats.  §§  641,  642,  646;  and  sees.  25,  26,  and  15  of  this  book. 

CIVIL    EIGHTS. 

[Sees.  15,  16,  and  17,  Act  of  February  28, 1871,  16  U.  S.  Stats.  438,  439. j 

Sec.  15.  And  be  it  further  enacted,  That  the  jurisdiction 
of  the  circuit  court  of  the  United  States  shall  extend  to 
all  cases  in  law  or  equity  arising  under  the  jDrovisions  of 
this  act  or  the  act  hereby  amended;  and  if  any  person 
shall  receive  any  injury  to  his  person  or  property  for  or 
on  account  of  any  act  by  him  done  under  any  of  the  pro- 
visions of  this  act  or  the  act  hereby  amended,  he  shall  be 


CIVIL  RIGHTS.  31 

entitled  to  maintain  suit  for  damages  therefor  in  the  cir- 
cuit court  of  the  United  States  in  the  district  wherein  the 
party  doing  the  injury  may  reside  or  shall  be  found. 

Sec.  16.  And  be  it  further  enacted,  That  in  any  case 
where  suit  or  prosecution,  civil  or  criminal,  shall  be  com- 
menced in  a  court  of  any  State  against  any  officer  of  the 
United  States,  or  other  person,  for  or  on  account  of  any 
act  done  under  the  provisions  of  this  act,  or  under  color 
thereof,  or  for  or  on  account  of  any  right,  authority,  or 
title  set  up  or  claimed  by  such  officer  or  other  person  un- 
der any  of  said  provisions,  it  shall  be  lawful  for  the  de- 
fendant in  such  suit  or  prosecution,  at  any  time  before 
trial,  upon  a  petition  to  the  circuit  court  of  the  United 
States  in  and  for  the  district  in  which  the  defendant  shall 
have  been  served  with  process,  setting  forth  the  nature  of 
said  suit  or  prosecution,  and  verifying  the  said  petition  by 
affidavit,  together  with  a  certificate  signed  by  an  attorney 
or  counselor  at  law  of  some  court  of  record  of  the  State 
in  which  such  suit  shall  have  been  commenced,  or  of  the 
United  States,  setting  forth  that  as  counsel  for  the  peti- 
tion[er]  he  has  examined  the  proceedings  against  him, 
and  has  carefully  inquired  into  all  the  matters  set  forth 
in  the  petition,  and  that  he  believes  the  same  to  be  true; 
which  petition,  affidavit,  and  certificate  shall  be  presented 
to  the  said  circuit  court,  if  in  session,  and  if  not,  to  the 
clerk  thereof  at  his  office,  and  shall  be  filed  in  said  office, 
and  the  cause  shall  thereupon  be  entered  on  the  docket  of 
said  court,  and  shall  be  thereafter  proceeded  in  as  a  cause 
originally  commenced  in  that  court;  and  it  shall  be  the 
duty  of  the  clerk  of  said  court,  if  the  suit  was  commenced 
in  the  court  below  by  summons,  to  issue  a  writ  of  certio- 
rari to  the  State  court,  requiring  said  court  to  send  to  the 
said  circuit  court  the  record  and  proceedings  in  said  cause; 
or  if  it  was  commenced  by  capias,  lie  shall  issue  a  writ  of 
habeas  corpus  cum  causa,  a  duplicate  of  which  said  writ 
shall  be  delivered  to  the  clerk  of  the  State  court,  or  left 
at  his  office  by  the  marshal  of  the  district,  or  his  deputy, 


32  CIVIL    RIGHTS. 

or  some  j)ersons  duly  authorized  thereto;  and  thereupon 
it  shall  be  the  duty  of  the  said  State  court  to  stay  all 
further  proceedings  in  such  cause;  and  the  said  suit  or 
prosecution,  upon  delivery  of  such  process,  or  leaving  the 
same  as  aforesaid,  shall  be  deemed  and  taken  to  be  moved 
to  the  said  circuit  court,  and  any  further  proceedings, 
trial,  or  judgment  therein  in  the  State  court  shall  be 
M'holly  nxill  and  void;  and  any  person,  whether  an  attor- 
ney or  officer  of  an^^  State  court,  or  otherwise,  who  shall 
thereafter  take  any  steps,  or  in  any  manner  proceed  in  the 
State  court  in  any  action  so  removed,  shall  be  guilty  of  a 
misdemeanor,  and  liable  to  trial  and  punishment  in  the 
court  to  which  the  action  shall  have  been  removed,  and 
upon  conviction  thereof  shall  be  punished  by  imprison- 
ment for  not  less  than  six  mouths  nor  more  than  one  year, 
or  by  line  not  less  than  five  hundred  nor  more  than  one 
thousand  dollars,  or  by  both  such  fine  and  imprisonment, 
and  shall  in  addition  thereto  be  amenable  to  the  said  court 
to  which  said  action  shall  have  been  removed  as  for  a  con- 
tempt; and  if  the  defendant  in  any  such  suit  be  in  actual 
custody  on  mesne  process  therein,  it  shall  be  the  duty  of 
the  marshal,  by  virtue  of  the  writ  of  habeas  corpus  cum 
causa,  to  take  the  body  of  the  defendant  into  his  custody, 
to  be  dealt  with  in  the  said  cause  according  to  the  rules  of 
law  and  the  order  of  the  circuit  court,  or  of  anj'^  judge 
thereof  in  vacation.  And  all  attachments  made,  and  all 
bail  or  other  security  given  upon  such  suit  or  prosecution, 
shall  be  and  continue  in  like  force  and  effect  as  if  the 
same  suit  or  prosecution  had  proceeded  to  final  judgment 
and  execution  in  the  State  court.  And  if  upon  the  re- 
movel  of  any  such  suit  or  prosecution  it  shall  be  made  to 
appear  to  the  said  circuit  court  that  no  copy  of  the  record 
and  i^roceedings  therein  in  the  State  court  can  be  obtained, 
it  shall  be  lawful  for  said  circuit  court  to  allow  and  re- 
quire the  plaintiff  to  proceed  cle  novo,  and  to  file  a  declar- 
ation of  his  cause  of  action,  and  the  parties  may  thereupon 
proceed  as  in  actions  onginally  brought  in   said   circuit 


ACTIONS   AGAEN'ST   CFV^IL   OFFICERS.  33 

court;  and  on  failure  of  so  proceeding  judgment  of  non 
prosequitur  may  be  rendered  against  the  plaintiff,  with 
costs  for  the  defendant. 

Sec.  17.  And  be  it  further  enacted,  That  in  any  case  in 
which  any  party  is  or  may  be  by  law  entitled  to  copies  of 
the  record  and  proceedings  in  any  suit  or  prosecution  in 
any  State  court,  to  be  used  in  any  court  of  the  United 
States,  if  the  clerk  of  said  State  court  shall,  upon  demand 
and  the  payment  or  tender  of  the  legal  fees,  refuse  or  neg- 
lect to  deliver  to  such  party  certified  copies  of  such,  record 
and  proceedings,  the  court  of  the  United  States  in  which 
such  record  and  proceedings  may  be  needed,  on  proof  by 
affidavit  that  the  clerk  of  such  State  court  has  refused  or 
neglected  to  deliver  copies  thereof  on  demand  as  aforesaid, 
may  direct  and  allow  such  record  to  be  supplied  by  affi- 
davit or  otherwise,  as  the  circumstances  of  the  case  may 
require  and  allow;  and  thereupon  such  proceeding,  trial, 
and  judgment  may  be  had  in  the  said  court  of  the  United 
States,  and  all  such  processes  awarded,  as  if  certified 
copies  of  such  records  and  proceedings  had  been  regularly 
before  the  said  court;  and  hereafter  in  all  civil  actions  in 
the  courts  of  the  United  States  either  party  thereto  may 
notice  the  same  for  trial. 

See  Kev.  Stats.  §§  643, 646,  645;  and  sees.  27, 15,  and  13  of  this  book. 

ACTIONS  AGAINST  CIVIL  OFFICERS. 

[Act  of  IVIarch  30, 1873.    Amendment  to  July  27, 1866, 17  U.  S.  Stats.  44.] 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 
whenever  a  personal  action  has  been  or  shall  be  brought 
in  any  State  court  by  an  alien  against  any  citizen  of  a 
State  who  is,  or  at  the  time  the  alleged  action  accrued 
was,  a  civil  officer  of  the  United  States,  being  non-resident 
of  that  State  wherein  jurisdiction  is  obtained  by  the  State 
court,  by  personal  service  of  process,  such  action  may  be 
removed  into  the  circuit  court  of  the  United  States  in  and 


34  REVISED  STATUTES. 

for  tbe  district  ia  which  the  defendant  shall  have  been 
served  with  process,  in  the  same  manner  as  now  provided 
for  the  removal  of  an  action  brought  in  a  State  court  by( 
the  provisions  of  section  three  of  the  act  of  March  second, 
eighteen  hundred  and  thirty-three,  entitled  "An  act  fur- 
ther to  provide  for  the  collection  of  duties  on  imports." 
See  Rev.  Stats.  §  644;  and  sec.  28  of  this  book. 

EE VISED   STATUTES. 

§  639.  Removal  of  suits  against  aliens,  etc., 
•where  amount  of  $500  in  dispute.— Any  suit  com- 
menced in  any  State  court,  wherein  the  amount  in  dis- 
pute, exclusive  of  costs,  exceeds  the  sum  or  value  of  five 
hundred  dollars,  to  be  made  to  appear  to  the  satisfaction 
of  said  court,  may  be  removed  for  trial  into  the  circuit 
court  for  the  district  where  such  suit  is  pending,  next  to 
be  held  after  the  tiling  of  the  petition  for  such  removal 
hereinafter  mentioned,  in  tlie  cases  and  in  the  manner 
stated  in  this  section. 

First.  "When  the  suit  is  against  an  alien,  or  is  by  a  cit- 
izen of  the  State  wherein  it  is  brought,  and  against  a  citi- 
zen of  another  State,  it  may  be  removed  on  the  petition  of 
such  defendant,  filed  in  said  State  court  at  the  time  of  en- 
tering his  ajjpearance  in  said  State  court. 

Second.  When  the  suit  is  against  an  alien  and  a  citizen 
v^f  the  State  wherein  it  is  brought,  or  is  by  a  citizen  of 
such  State  against  a  citizen  of  the  same  and  a  citizen  of 
another  State,  it  may  be  so  removed,  as  against  said  alien 
or  citizen  of  another  State,  upon  the  petition  of  such  de- 
fendant, filed  at  any  time  before  the  trial  or  final  hearing 
of  the  cause,  if  so  far  as  it  relates  to  him  it  is  brought  for 
tlie  purpose  of  restraining  or  enjoining  him,  or  is  a  suit  in 
which  there  can  be  a  final  determination  of  the  contro- 
versy, so  far  as  concerns  him,  without  the  presence  of  the 
other  defendants  as  i^arties  in  the  cause.  But  such  re- 
moval shall  not  take  away  or  prejudice  the  right  of  the 


EEVISED   STATUTES.  35 

plaintiff  to  proceed  at  the  same  time  with  the  suit  in  the 
State  court,  as  against  the  other  defendants. 

Third.  When  a  suit  is  between  a  citizen  of  the  State  in 
which  it  is  brought  and  a  citizen  of  another  State,  it  may 
be  so  removed  on  the  petition  of  the  latter,  whether  he 
be  plaintiff  or  defendant,  filed  at  any  time  before  the  trial 
or  final  hearing  of  the  suit,  if,  before  or  at  the  time  of  fil- 
ing said  petition,  he  makes  and  files  in  said  State  court  an 
affidavit,  stating  that  he  has  reason  to  believe  and  does 
believe  that,  from  prejudice  or  local  influence,  he  will  not 
be  able  to  obtain  justice  in  such  State  court. 

In  order  to  such  removal,  the  petitioner  in  the  cases 
aforesaid  must,  at  the  time  of  filing  his  petition  therefor, 
offer  in  said  State  court  good  and  sufficient  surety  for  his 
entering  in  such  circuit  court,  on  the  first  day  of  its  ses- 
sion, copies  of  said  process  against  him,  and  of  all  plead- 
ings, depositions,  testimony,  and  other  proceedings  in  the 
cause,  or  in  said  cases  where  a  citizen  of  the  State  in 
which  the  suit  is  brought  is  a  defendant,  copies  of  all  pro- 
cess, pleadings,  depositions,  testimony,  and  other  proceed- 
ings in  the  cause  concerning  or  affecting  the  petitioner, 
and  also  for  his  there  appearing  and  entering  special  bail 
in  the  cause,  if  special  bail  was  originally  requisite  there- 
in. It  shall  thereupon  be  the  duty  of  the  State  court  to 
accejDt  the  surety  and  to  proceed  no  farther  in  the  cause 
against  the  petitioner,  and  any  bail  that  may  have  been 
originally  taken  shall  be  discharged, 

When  the  said  copies  are  entered  as  aforesaid  in  the 
circuit  court,  the  cause  shall  there  proceed  in  the  same 
manner  as  if  it  had  been  brought  there  by  original  pro- 
cess, and  the  copies  of  pleadings  shall  have  the  same 
force  and  effect,  in  every  respect  and  for  every  purpose, 
as  the  original  pleadings  would  have  had  by  the  laws  and 
practice  of  the  courts  of  such  State  if  the  cause  had  re- 
mained in  the  State  court. 

1  U.  S.  Stat.  79;  14  id.  306;  14  id.  558;  see  sees.  4-9  of  tliis  book. 


3G  REVISED   STATUTES. 

§  640.  Removal  of  suits  against  corporations 
organized  under  a  law  of  United  States.— Any  suit 
commenced  iu  any  court  other  than  a  circuit  or  district 
court  of  the  United  States,  against  any  corporation  other 
than  a  banking  corporation,  organized  under  a  law  of 
the  United  States,  or  against  any  member  thereof  as 
such  member  for  any  alleged  liability  of  such  corporation, 
or  of  such  member  as  a  member  thereof,  maybe  removed 
for  trial  in  the  circuit  covu't  for  the  district  where  such 
suit  is  pending,  upon  the  petition  of  such  defendant,  veri- 
lied  by  oath,  stating  that  such  defendant  has  a  defense 
arising  under  or  by  virtue  of  the  Constitution  or  of  any 
treaty  or  law  of  the  United  States.  Such  removal,  in  all 
other  respects,  shall  be  governed  by  the  provisions  of  the 
preceding  section. 

See  sec.  24  of  this  book. 

§  641.  Removal  of  causes  against  persons  de- 
nied any  civil  rights,  etc.— When  any  civil  suit  or 
criminal  prosecution  is  commenced  in  any  State  court, 
for  any  cause  whatsoever,  against  any  person  who  is 
denied  or  cannot  enforce  in  the  judicial  tribunals  of  the 
State,  or  in  the  part  of  the  State  where  such  suit  or  prose- 
cution is  pending,  any  right  secured  to  him  by  any  law 
providing  for  the  equal  civil  rights  of  citizens  of  the 
United  States,  or  of  all  persons  within  the  jurisdiction  of 
the  United  States,  or  against  any  officer,  civil  or  military, 
or  other  person,  for  any  arrest  or  imprisonment  or  other 
trespasses  or  wrongs  made  or  committed  by  virtue  of  or 
under  color  of  authority  derived  from  any  law  providing 
for  equal  rights  as  aforesaid,  or  for  refusing  to  do  any  act 
on  the  ground  that  it  would  be  inconsistent  with  such 
law,  such  suit  or  prosecution  may,  upon  the  petition  of 
such  defendant,  filed  in  said  State  court  at  any  time  be- 
fore the  trial  or  final  hearing  of  the  cause,  stating  the 
facts  and  verified  by  oath,  be  removed  for  trial  into  the 
next  circuit  court  to  be  held  in  the  district  where  it  is 


REVISED   STATUTES.  37 

pending.  Upon  tlie  filing  of  such  petition  all  further 
proceedings  in  the  State  courts  shall  cease,  and  shall  not 
he  resumed  except  as  hereinafter  provided.  But  all  bail 
and  other  security  given  in  such  suit  or  prosecution  shall 
continue  in  like  force  and  effect  as  if  the  same  had  pro- 
ceeded to  final  judgment  and  execution  in  the  State  court. 
It  shall  be  the  duty  of  the  clerk  of  the  State  court  to  fur- 
nish such  defendant  petitioning  for  a  removal  copies  of 
said  process  against  him,  and  of  all  pleading,  deposi- 
tions, testimony,  and  other  proceedings  in  the  case.  If 
such  copies  are  filed  by  said  petitioner  in  the  circuit  court 
on  the  first  day  of  its  session,  the  cause  shall  proceed 
therein  in  tbe  same  manner  as  if  it  had  been  brought 
there  by  original  process;  and  if  the  said  clerk  refuses  or 
neglects  to  furnish  such  copies,  the  petitioner  may  there- 
upon docket  the  case  in  the  circuit  court,  and  the  said 
court  shall  then  have  jurisdiction  therein,  and  may,  upon 
proof  of  such  refusal  or  neglect  of  said  clerk,  and  upon 
reasonable  notice  to  the  plaintiff,  require  tlie  i:)laintiff  to 
file  a  declaration,  j)etition,  or  complaint  in  the  cause;  and 
in  case  of  his  default,  may  order  a  nonsuit  and  dismiss 
the  case  at  the  costs  of  the  jilaintiff,  and  such  dismissal 
shall  be  a  bar  to  any  further  suit  touching  the  matter  in 
controversy.  But  if,  without  such  refusal  or  neglect  of 
said  clerk  to  furnish  such  copies  and  proof  thereof,  the 
petitioner  for  removal  fails  to  file  copies  in  tlie  circuit 
court  as  herein  provided,  a  certificate,  under  the  seal  of 
the  circuit  court,  stating  such  failure,  shall  be  given,  and 
upon  the  production  thereof  in  said  State  court,  the  cause 
shall  proceed  therein  as  if  no  petition  for  a  removal  had 
been  filed. 

16  U.  S.  Stat.  144;  14  id.  27;  12  id.  756;   14  id.  46;  sec  sec.  25  of  this 
book. 

§  642.  When  petitioner  is  in  actual  custody  of 
State  court. — AYhen  all  the  acts  necessary  for  the  re- 
moval of  any  suit  or  prosecution,  as  provided  in  the  pre- 
Desty  Removal.— 4. 


38  EE\^SED  STATUTES. 

ceding  section,  have  been  performed,  and  the  defendant 
petitioning  for  such  removal  is  in  actual  custody  on  pro- 
cess issued  by  said  State  court,  it  shall  be  the  duty  of  the 
clerk  of  said  circuit  court  to  issue  a  writ  of  habeas  corpvs 
cum  causa,  and  of  the  marshal,  by  virtue  of  said  writ,  to 
take  the  body  of  the  defendant  into  his  custody,  to  be 
dealt  with  in  said  circuit  court  according  to  law  and  the 
orders  of  said  court,  or  in  vacation,  of  any  judge  thereof; 
and  the  marshal  shall  file  with  or  deliver  to  the  clerk  of 
said  State  court  a  duplicate  copy  of  said  writ. 

14U.  S.Stat.  385;  12  id.  756;  14  id.  46;  14  id.  27;  see  sec.  26  of  this  book. 

§  643.  Removal  of  suits  and  prosecutions 
against  revenue  ofiBcers  and  ofiBcers  acting  under 
registration  la-ws— When  any  civil  suit  or  criminal 
prosecution  is  commenced  in  any  court  of  a  State  against 
any  officer  appointed  under  or  acting  by  authority  of  any 
revenue  law  of  the  United  States  now  or  hereafter  en- 
acted, or  against  any  person  acting  under  or  by  authority 
of  any  such  officer,  on  account  of  any  act  done  under 
color  of  his  office  or  of  any  such  law,  or  on  account  of 
any  right,  title,  or  authority  claimed  by  such  officer  or 
other  person  under  any  such  law;  or  is  commenced 
against  any  person  holding  property  or  estate  by  title 
derived  from  any  such  officer,  and  affects  the  validity  of 
any  such  revenue  law;  or  is  commenced  against  any 
officer  of  the  United  States,  or  other  person,  on  account 
of  any  act  done  under  the  provisions  of  Title  XXVI., 
"  The  Elective  Franchise,"  or  on  account  of  any  right, 
title,  or  authority  claimed  by  such  officer  or  other  person 
under  any  of  the  said  provisions— the  said  suit  or  prosecu- 
tion may,  at  any  time  before  the  trial  or  final  hearing 
thereof,  be  removed  for  trial  into  the  circuit  court  next  to 
be  holden  in  the  district  where  the  same  is  pending,  upon 
the  petition  of  such  defendant  to  said  circuit  court,  and  in 
the  following  manner.  Said  petition  shall  set  forth  the 
nature  of  the  suit  or  prosecution,  and  be  verified  by  affi- 


REVISED  STATUTES.  m  ■ 

davit ;  and  together  with  a  certificate  signed  by  an  attor- 
ney or  counselor  at  law  of  some  court  of  record  of  the 
State  where  such  suit  or  prosecution  is  commenced,  or  of 
the  United  States,  stating  that,  as  counsel  for  the  peti- 
tioner, he  has  examined  the  proceedings  against  him,  and 
carefully  inquired  into  all  the  matters  set  forth  in  the 
petition,  and  that  he  believes  them  to  be  true,  shall  be 
presented  to  the  said  circuit  court,  if  in  session,  or  if  it  be 
not,  to  the  clerk  thereof  at  his  office,  and  shall  be  filed  in 
said  office.  The  cause  shall  thereupon  be  entered  on  the 
docket  of  the  circuit  court,  and  shall  proceed  as  a  cause 
originally  commenced  in  that  court;  but  all  bail  and 
other  security  given  upon  such  suit  or  prosecution  shall 
continue  in  like  force  and  effect  as  if  the  same  had  pro- 
ceeded to  final  judgment  and  execution  in  the  State  court. 
^Vhen  the  suit  is  commenced  in  the  State  court  by  sum- 
mons, subpoena,  i^etition,  or  another  process  except  capias, 
the  clerk  of  the  circuit  court  shall  issue  a  writ  of  certi- 
orari to  the  State  court,  requiring  it  to  send  to  the  circuit 
court  the  record  and  jDroceedings  in  the  cause.  When  it 
is  commenced  by  capias,  or  by  any  other  similar  form  of 
proceeding  by  which  a  personal  arrest  is  ordered,  he  shall 
issue  a  writ  of  habeas  corpus  cum  causa,  a  duplicate  of 
which  shall  be  delivered  to  the  clerk  of  the  State  court, 
or  left  at  his  office  by  the  marshal  of  the  district,  or  his 
deputy,  or  by  some  person  duly  authorized  thereto;  and 
thereupon  it  shall  be  the  duty  of  the  State  court  to  stay 
all  further  proceedings  in  the  cause,  and  the  suit  or 
prosecution,  upon  delivery  of  such  process,  or  leaving 
the  same  as  aforesaid,  shall  be  held  to  be  removed  to  the 
circuit  court,  and  any  further  proceedings,  trial,  or  judg- 
ment therein  in  the  State  court  shall  be  void.  And  if  the 
defendant  in  the  suit  or  prosecution  be  in  actual  custody 
on  mesne  process  therein,  it  shall  be  the  duty  of  the 
marshal,  by  virtue  of  the  writ  of  habeas  corpus  cum  causa, 
to  take  the  body  of  the  defendant  into  his  custody,  to  be 
dealt  with  in  the  cause  according  to  law  and  the  order  of 


40  REVISED  STATUTES. 

the  circuit  court,  or  in  vacation,  of  any  judge  thereof; 
and  if,  upon  the  removal  of  such  suit  or  prosecution,  it  is 
made  to  appear  to  the  circuit  court  that  no  copy  of  the 
record  and  proceedings  therein  in  the  State  court  can  be 
obtained,  the  circuit  court  may  allow  and  require  the 
plaintiff  to  proceed  de  novo,  and  to  file  a  declaration  of  his 
cause  of  action;  and  the  parties  may  thereupon  proceed 
as  in  actions  originally  brought  in  said  circuit  court.  On 
failure  of  the  plaintiff  so  to  proceed,  judgment  of  nan 
prosequitur  may  be  rendered  against  him,  with  costs  for 
the  defendant. 

4  U.  S.  Stat.  633;  14  id.  171;  16  id.  438;  see  sec.  27  of  this  book. 

§  644.  Removal  of  suits  by  aliens  in  a  particular 
case. — Whenever  a  personal  action  has  been  or  shall  be 
brought  in  any  State  court  by  an  alien  against  any  citizen 
of  a  State  who  is,  or  at  the  time  the  alleged  action  ac- 
crued was,  a  civil  officer  of  the  United  States,  being  a 
non-resident  of  that  State  wherein  jurisdiction  is  obtained 
by  the  State  court  by  personal  service  of  process,  such 
action  may  be  removed  into  the  circuit  court  of  the  United 
States  in  and  for  the  district  in  which  the  defendant 
shall  have  been  served  with  the  process,  in  the  same  man- 
ner as  now  provided  for  the  removal  of  an  action  brought 
in  a  State  court  by  the  provisions  of  the  preceding  sec- 
tion. 

7  U.  S.  Stat.  44;  see  sec.  28  of  this  book. 

§  645.  Wlien  copies  of  records  are  refused  by- 
clerk  of  State  court. — In  any  case  where  a  party  is  en- 
titled to  copies  of  the  record  and  proceedings  in  any  suit 
or  j^rosecution  in  a  State  court,  to  be  used  in  any  court  of 
the  United  States,  if  the  clerk  of  said  State  court,  upon 
demand,  and  the  payment  or  tender  of  the  legal  fees,  re- 
fuses or  neglects  to  deliver  to  him  certitied  copies  of  such 
records  and  proceedings,  the  court  of  the  United  States  in 
which  such  record  and  proceedings  are  needed  may,  on 


REVISED  STATUTES,  41 

l^roof  by  affidavit  that  the  clerk  of  said  State  court  has 
refused  or  neglected  to  deliver  copies  thereof,  on  demand 
as  aforesaid,  direct  such  record  to  be  supplied  by  affi- 
davit, or  otherwise,  as  the  circumstances  of  the  case  may 
require  and  allow;  and  thereupon,  such  proceeding, 
trial,  and  judgment  may  be  had  in  the  said  court  of  the 
United  States,  and  all  such  processes  awarded,  as  if  certi- 
lied  copies  of  such  records  and  proceedings  had  been  reg- 
ularly before  the  said  court. 

4  U.  S.  Stat.  634;  16  id.  439;  see  sec.  13  of  this  book 

§  646.  Attachments,  injunctions,  and  indemnity 
bonds  to  remain  in  force  after  removal.— When  a 

suit  is  removed  for  trial  from  a  State  court  to  a  circuit 
court,  as  provided  in  the  foregoing  sections,  any  attach- 
ment of  the  goods  or  estate  of  the  defendant  by  the  orig- 
inal process  shall  hold  the  same  to  answer  the  final 
judgment,  in  the  same  manner  as  by  the  laws  of  such 
State  they  would  have  been  held  to  answer  final  judg- 
ment had  it  been  rendered  by  the  court  in  which  the  suit 
was  commenced;  and  any  injunction  granted  before  the 
removal  of  the  cause  against  the  defendant  applying  for 
its  removal  shall  continue  in  force  until  modified  or  dis- 
solved by  the  United  States  court  into  which  the  cause  is 
removed ;  and  anj^  bond  of  indemnity  or  other  obligation, 
given  by  the  plaintiff  upon  the  issuing  or  granting  of  any 
attachment,  writ  of  injunction,  or  other  restraining  pro- 
cess, against  the  defendant  petitioning  for  the  removal  of 
the  cause,  shall  also  continue  in  full  force,  and  may  be 
prosecuted  by  the  defendant  and  made  available  for  his 
indemnity  in  case  the  attachment,  injunction,  or  other  re- 
straining process  be  set  aside  or  dissolved,  or  judgment  be 
rendered  in  his  favor,  in  the  same  manner  and  with  the 
same  effect  as  if  such  attachment,  injunction,  or  other  re- 
straining process  had  been  granted,  and  such  bond  had 
been  originally  filed  or  given  in  such  State  court. 

1  U.  S.  Stat.  79;  14  id.  306;  14  id.  558;  15  id.  227;  14  id.  27;  12  id.  756;  14 
id.  46;  14  id.  385;  4  id.  633;  14  id.  171;  16  id.  438,  439;  see  sec.  15  of  this 
book. 


42  REVISED  STATUTES. 

§  647.   Removal  of  suits  where  parties  claim 
land  under  titles  from  different  States.— If,  in  any 

action  commenced  in  a  State  court,  where  the  title  of  land 
is  concerned,  and  the  parties  are  citizens  of  the  same 
State,  and  the  matter  in  dispute,  exclusive  of  costs,  ex- 
ceeds the  sum  or  value  of  five  hundred  dollars,  the  sum 
or  value  being  made  to  appear  to  the  satisfaction  of  the 
court,  either  party,  before  the  trial,  states  to  the  court, 
and  makes  affidavit  if  they  require  it,  that  he  claims  and 
shall  rely  upon  a  right  or  title  to  the  land  under  a  grant 
from  a  State  other  than  that  in  which  the  suit  is  pending, 
and  produces  the  original  grant,  or  an  exemplification  of 
it,  except  where  the  loss  of  public  records  shall  put  it  out 
of  his  i:)ower,  and  moves  that  the  adverse  party  inform 
the  court  whether  he  claims  a  right  or  title  to  the  land 
under  a  grant  from  the  State  in  which  the  suit  is  pending, 
the  said  adverse  party  shall  give  such  information,  or 
otherwise  not  be  allowed  to  plead  such  grant,  or  give  it 
in  evidence  ui^on  the  trial;  and  if  he  gives  information 
that  he  does  claim  under  such  grant,  the  party  claiming 
under  the  grant  first  mentioned  may,  on  motion,  remove 
the  cause  for  trial  into  the  next  circuit  court  to  be  holden 
in  the  district  where  such  suit  is  pending.  If  the  party  so 
removing  the  cause  is  defendant,  the  removal  shall  be 
made  under  the  regulations  governing  removals  of  a 
cause  into  such  court  by  an  alien;  and  neither  jaarty 
removing  the  cause  shall  be  allowed  to  plead  or  give  evi- 
dence of  any  other  title  than  that  stated  by  him  as  afore^ 
said  as  the  ground  of  his  claim. 
1  U.  S.  Stat.  79;  see  sec.  12  of  this  book. 


REMOVAL  ACT  OF  1875.  43 

REMOVAL   ACT    OF  1875. 

AN  ACT  TO  DETERMINE  THE  JURISDICTION  OP  CIRCUIT 
COURTS  OF  THE  UNITED  STATES,  AND  TO  REGULATE  THE 
REMOVAL  OF  CAUSES  FROM  STATE  COURTS,  AND  FOR  OTHER 
PURPOSES. 

§  1.  Jurisdiction— original,  concurrent,  appellate. 

— Be  it  enacted  hy  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled.  That 
the  circuit  courts  of  the  United  States  shall  have  original 
cognizance,  concurrent  with  the  courts  of  the  several 
States,  of  all  suits  of  a  civil  nature  at  common  law  or  in 
equity,  where  the  matter  in  dispute  exceeds,  exclusive  of 
costs,  the  sum  or  value  of  five  hundred  dollars,  and  arising 
under  the  Constitution  or  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their  au- 
thority, or  in  which  the  United  States  are  plaintiffs  or 
petitioners,  or  in  which  there  shall  be  a  controversy  be- 
tween citizens  of  different  States,  or  a  controversy  be- 
tween citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  or  a  controversy  between  citi- 
zens of  a  State  and  foreign  States,  citizens,  or  subjects. 

And  shall  have  exclusive  cognizance  of  all  crimes  and 
offenses  cognizable  under  the  authority  of  the  United 
States,  except  as  otherwise  provided  by  law,  and  concur- 
rent jurisdiction  with  the  district  courts  of  the  crimes  and 
offenses  cognizable  therein. 

But  no  person  shall  be  arrested  in  one  district  for  trial 
in  another  in  any  civil  action  before  a  circuit  or  district 
court. 

And  no  civil  suit  shall  be  brought  before  either  of  said 
courts  against  any  person  by  any  original  process  or  pro- 
ceeding in  any  other  district  than  that  whereof  he  is  an 
inhabitant,  or  in  which  he  shall  be  found  at  the  time  of 
serving  such  process  or  commencing  such  proceedings, 
except  as  hereinafter  provided. 

Nor  shall  anv  circuit  or  district  court  have  cognizance 


44  REMOVAL   ACT   OF   1875. 

of  any  suit  founded  on  contract  in  favor  of  an  assignee, 
unless  a  suit  might  have  been  i^rosecuted  in  such  court  to 
recover  thereon  if  no  assignment  had  been  made,  except 
in  cases  of  promissory  notes  negotiable  by  the  law  mer- 
chant and  bills  of  exchange. 

And  the  circuit  courts  shall  also  have  appellate  juris- 
diction from  the  district  courts  under  the  regulations  and 
restrictions  prescribed  by  law. 

Rev.  Stat.  §  639;  see  sec.  1  of  this  book. 

§  2.  Civil  action,  removal  of.— That  any  suit  of  a 
civil  nature  at  law  or  in  equity,  now  pending  or  hereafter 
brought  in  any  State  court,  where  the  matter  in  dispute 
exceeds,  exclusive  of  costs,  the  sum  or  value  of  five  hun- 
dred dollars,  and  arising  under  the  Constitution  or  laws 
of  the  Unitod  States,  or  treaties  made,  or  which  shall  be 
made,  under  their  authority,  or  in  which  the  United 
States  shall  be  jilaintiff  or  i^etitioner,  or  in  which  there 
shall  be  a  controversy  between  citizens  of  different  States, 
or  a  controversy  between  citizens  of  tbe  same  State  claim- 
ing lands  under  grants  of  different  States,  or  a  contro- 
versy between  citizens  of  a  State  and  foreign  States, 
citizens,  or  subjects,  either  party  may  remove  said  suit 
into  the  circuit  court  of  the  United  States  for  the  proper 
district. 

And  when  in  any  suit  mentioned  in  this  section  there 
shall  be  a  controversy  which  is  wholly  between  citizens 
of  different  States,  and  which  can  be  fully  determined  as 
between  them,  then  either  one  or  more  of  the  plaintiffs  or 
defendants  actually  interested  in  such  controversy  may 
remove  said  suit  into  the  circuit  court  of  the  United  States 
for  the  proper  district. 
Kev.  Stats.  §§  639-642;  see  sec.  10  of  this  book. 

§  3.  Removal,  proceedings.— That  whenever  either 
party,  or  any  one  or  more  of  the  plaintiffs  or  defendants 
entitled  to  remove  any  suit  mentioned  in  the  next  preced- 


REMOVAL  ACT  OF   1875.  45 

ing  section,  shall  desire  to  remove  such  suit  from  a  State 
court  to  the  circuit  court  of  the  United  States,  he  or  they 
may  malce  and  file  a  petition  in  such  suit  in  such  State 
court  before  or  at  the  term  at  which  said  cause  could  be 
first  tried,  and  before  the  trial  thereof,  for  the  removal  of 
such  suit  into  the  circuit  court  to  be  held  in  the  district 
where  such  suit  is  pending,  and  shall  make  and  file  there- 
with a  bond,  with  good  and  sufficient  surety,  for  his  or 
their  entering  in  such  circuit  court,  on  the  first  day  of  its 
then  next  session,  a  copy  of  the  record  in  such  suit,  and 
for  jDaying  all  costs  that  may  be  awarded  by  the  said  cir- 
cuit court,  if  said  court  shall  hold  that  such  suit  was 
wrongfully  or  imj^roperly  removed  thereto,  and  also  for 
there  appearing  and  entering  special  bail  in  such  suit,  if 
special  bail  was  originally  requisite  therein,  it  shall  then 
be  the  duty  of  the  State  court  to  accept  said  petition  and 
bond,  and  proceed  no  farther  in  such  suit;  and  any  bail 
that  may  have  been  originally  taken  shall  be  discharged; 
and  the  said  copy  being  entered  as  aforesaid  in  said  cir- 
cuit court  of  the  United  States,  the  cause  shall  then  pro- 
ceed in  the  same  manner  as  if  it  had  been  originally 
commenced  in  the  said  circuit  court. 

And  if  in  any  action  commenced  in  a  State  court  the 
title  of  land  be  concerned,  and  the  parties  are  citizens  of 
the  same  State,  and  the  matter  in  dispute  exceeds  the 
sum  or  value  of  five  hundred  dollars,  exclusive  of  costs, 
the  sum  or  value  being  made  to  appear,  one  or  more  of 
the  plaintiffs  or  defendants,  before  the  trial,  may  state  to 
the  court,  and  make  affidavit  if  the  court  require  it,  that 
he  or  they  claim  and  shall  rely  upon  a  right  or  title  to  the 
land  under  a  grant  from  a  State,  and  produce  the  original 
grant,  or  an  exemplification  of  it,  except  where  the  loss 
of  public  records  shall  put  it  out  of  his  or  their  jiower, 
and  shall  move  that  any  one  or  more  of  the  adverse  party 
inform  the  court  whether  he  or  they  claim  a  right  or  title 
to  the  land  under  a  grant  from  some  other  State,  the 
party  or  parties  so  required  shall  give  such  information. 


46  REMOVAL  ACT  OF  1875. 

or  Otherwise  not  be  allowed  to  plead  such  grant,  or  give 
it  in  evidence  upon  the  trial ;  and  if  he  or  they  inform 
that  he  or  they  do  claim  under  such  grant,  any  one  or 
more  of  the  party  moving  for  such  information  may  then, 
on  petition  and  bond,  as  hereinbefore  mentioned  in  this 
act,  remove  the  cause  for  trial  to  the  circuit  court  of  the 
United  States  next  to  be  holden  in  such  district. 

And  any  one  of  either  party  removing  the  cause  shall 
not  be  allowed  to  plead  or  give  evidence  of  any  other 
title  than  that  by  him  or  them  stated  as  aforesaid  as  the 
ground  of  his  or  their  claim. 

And  the  trial  of  issues  of  fact  in  the  circuit  courts  shall, 
in  all  suits  except  those  of  equity,  and  of  admiralty  and 
maritime  jurisdiction,  be  by  jury. 
Rev,  Stats.  §§  647, 648, 649;  see  sec.  11  of  this  book. 

§  4.  Process,  not  affected  by.— That  when  any  suit 
shall  be  removed  from  a  State  court  to  a  circuit  court  of 
the  United  States,  any  attachment  or  sequestration  of  the 
goods  or  estate  of  the  defendant  had  in  such  suit  in  the 
State  court  shall  hold  the  goods  or  estate  so  attached  or 
sequestered  to  answer  the  final  judgment  or  decree  in  the 
same  manner  as  by  law  they  would  liave  been  held  to 
answer  final  judgment  or  decree  had  it  been  rendered  by 
the  court  in  which  such  suit  was  commenced. 

And  all  bonds,  undertakings,  or  security  given  by 
either  party  in  such  suit  prior  to  its  removal  shall  remain 
valid  and  effectual,  notwithstanding  said  removal. 

And  all  injunctions,  orders,  and  other  proceedings  had 
in  such  suit  prior  to  its  removal  shall  remain  in  full  force 
and  effect  until  dissolved  or  modified  by  the  court  to 
which  such  suit  shall  be  removed. 

Rev.  Stats.  §  646;  see  sec.  16  of  this  boob. 

§  5.  Dismissal,  when.— That  if,  in  any  suit  com- 
menced in  a  circuit  court,  or  removed  from  a  State  court 
to  a  circuit  court  of  the  United  States,  it  shall  appear  to 
the  satisfaction  of  said  circuit  court,  at  any  time  after 


KEMOVAL  ACT  OF   1875.  47 

snch  suit  has  been  brought  or  removed  thereto,  that  such 
suit  does  not  really  and  substantially  involve  a  dispute 
or  controversy  i^roperly  within  the  jurisdiction  of  said 
circuit  court,  or  that  the  parties  to  said  suit  have  been 
improperly  or  coUusively  made  or  joined,  either  as 
plaintiffs  or  defendants,  for  the  purpose  of  creating  a 
case  cognizable  or  removable  under  this  act,  the  said 
circuit  court  shall  proceed  no  farther  therein,  but  shall 
dismiss  the  suit  or  remand  it  to  the  court  from  which  it 
was  removed,  as  justice  may  require,  and  shall  make 
such  order  as  to  costs  as  shall  be  just. 

But  the  order  of  said  circuit  court  dismissing  or  re- 
manding said  cause  to  the  State  court  shall  be  reviewable 
by  the  supreme  court  on  writ  of  error  or  appeal,  as  the 
case  may  be. 

Kev.  Stats.  §§  690-701;  see  sec.  17  of  this  book. 

§  6.  Proceedings.— That  the  circuit  court  of  the 
United  States  shall,  in  all  suits  removed  under  the  pro- 
visions of  this  act,  proceed  therein  as  if  the  suit  had  been 
originally  commenced  in  said  circuit  court,  and  the 
same  proceedings  had  been  taken  in  such  suit  in  said 
circuit  court  as  shall  have  been  had  therein  in  said  State 
court  prior  to  its  removal. 

See  sec.  18  of  this  book. 

§  7.  Time  to  file  application— misfeasance  of  clerk 
— certiorari. — That  in  all  causes  removable  under  this 
act,  if  the  term  of  the  circuit  court  to  which  the  same  is  re- 
movable, then  next  to  be  holden,  shall  commence  within 
twenty  days  after  filing  the  petition  and  bond  in  the 
State  court  for  its  removal,  then  he  or  they  who  apply  to 
remove  the  same  shall  have  twenty  days  from  such 
application  to  file  said  copy  of  record  in  said  circuit 
court  and  enter  appearance  therein;  and  if  done  within 
said  twenty  days,  such  filing  and  appearance  shall  be 
taken  to  satisfy  the  said  bond  in  that  behalf. 

That  if  the  clerk  of  the  State  court  in  which  any  such 


48  REMOVAIi  ACT  OF  1875, 

cause  shall  be  pending,  shall  refuse  to  any  one  or  more  of 
the  parties  or  persons  applying  to  remove  the  same,  a  copy 
of  the  record  therein,  after  tender  of  legal  fees  for  such 
copy,  said  clerk  so  offending  shall  be  deemed  guilty  of  a 
misdemeanor,  and,  on  conviction  thereof  in  the  circuit 
court  of  the  United  States  to  which  said  action  or  pro- 
ceeding was  removed,  shall  be  punished  by  imprisonment 
not  more  than  one  year,  or  by  line  not  exceeding  81,000, 
or  both,  in  the  discretion  of  the  court. 

And  the  circuit  court  to  which  any  cause  shall  be  re- 
movable under  this  act  shall  have  power  to  issue  a  writ 
of  certiorari  to  said  State  court  commanding  said  State 
court  to  make  return  of  the  record  in  any  such  cause 
removed  as  aforesaid,  or  in  which  any  one  or  more  of  the 
plaintiffs  or  defendants  have  complied  with  the  pro- 
visions of  this  act  for  the  removal  of  the  same,  and  en- 
force said  writ  according  to  law. 

And  if  it  shall  be  impossible  for  the  parties  or  persons 
removing  any  cause  under  this  act,  or  complying  with  its 
provisions  for  the  removal  thereof,  to  obtain  such  copy, 
for  the  reason  that  the  clerk  of  said  State  court  refuses  to 
furnish  a  copy,  on  payment  of  legal  fees,  or  for  any  other 
reason,  the  circuit  court  shall  make  an  order  requiring 
the  prosecutor  in  any  such  action  or  proceeding  to  en- 
force forfeiture  or  recover  penalty  as  aforesaid,  to  file  a 
copy  of  the  paper  or  proceeding  by  which  the  same  was 
commenced,  within  such  time  as  the  court  may  deter- 
mine; and  in  default  thereof  the  court  shall  dismiss  the 
said  action  or  proceeding. 

But  if  said  order  shall  be  complied  with,  then 
said  circuit  court  shall  require  the  other  party  to 
plead,  and  said  action  or  proceeding  shall  proceed 
to  final  judgment;  and  the  said  circuit  court  may 
make  an  order  requiring  the  parties  thereto  to  plead  de 
novo;  and  the  bond  given,  conditioned  as  aforesaid,  shall 
be  discharged  so  far  as  it  requires  a  copy  of  the  record  to 
be  filed  as  aforesaid. 

Eev.  Stats.  §  645;  see  sec.  U  of  this  book. 


KEMOVAL  ACT  OF  1875.  49 

§  8.  Liens— appearance  of  parties.— That  when  in 
any  suit,  commenced  in  any  circuit  court  of  the  United 
States,  to  enforce  any  legal  or  equitable  lien  upon,  or 
claim  to,  or  to  remove  any  incumbrance  or  lien  or  cloud 
upon,  the  title  to  real  or  personal  property  within  the  dis- 
trict where  such  suit  is  brought,  one  or  more  of  the  de- 
fendants therein  shall  not  be  an  inhabitant  of,  or  found 
within,  tlie  said  district,  or  shall  not  voluntarily  appear 
thereto,  it  shall  be  lawful  for  the  court  to  make  an  order 
directing  such  absent  defendant  or  defendants  to  appear, 
plead,  answer,  or  demur,  by  a  day  certain  to  be  desig- 
nated, which  order  shall  be  served  on  such  absent  defend- 
ant or  defendants,  if  practicable,  wherever  found,  and 
also  upon  the  person  or  persons  in  possession  or  charge  of 
said  property,  if  any  there  be. 

Or  where  such  personal  service  ui3on  such  absent  de- 
fendant or  defendants  is  not  practicable,  such  order  shall 
be  published  in  such  manner  as  the  court  may  direct,  not 
less  than  once  a  week  for  six  consecutive  weeks. 

And  in  case  such  absent  defendant  shall  not  appear, 
plead,  answer,  or  demur  within  the  time  so  limited,  or 
within  some  further  time,  to  be  allowed  by  the  court  in 
its  discretion,  and  upon  proof  of  the  service  or  publication 
of  said  order,  and  of  the  performance  of  the  directions 
contained  in  the  same,  it  shall  be  lawful  for  the  court  to 
entertain  jurisdiction,  and  proceed  to  the  hearing  and  ad- 
judication of  such  suit  in  the  same  manner  as  if  such 
absent  defendant  had  been  served  with  process  within 
the  said  district. 

But  said  adjudication  shall,  as  regards  said  absent  de- 
fendant or  defendants  without  appearance,  affect  only 
the  property  which  shall  have  been  the  subject  of  the 
suit  and  under  the  jurisdiction  of  the  court  therein,  with- 
in such  district. 

And  when  a  part  of  the  said  real  and  iiersonal  property 
against  which  such  proceeding  shall  be  taken  shall  be 

Desty  Removal.— 5. 


50  REMOVAL  ACT  OF  1875. 

within  another  district,  but  within  the  same  State,  said 
suit  may  be  brought  in  either  district  in  said  State. 

Provided,  however,  that  any  defendant  or  defendants 
not  actually  personally  notified  as  above  provided  may, 
at  any  time  within  one  year  after  final  judgment  in  any 
suit  mentioned  in  this  section,  enter  his  appearance  in 
said  suit  in  said  circuit  court,  and  thereupon  the  said 
court  shall  make  an  order  setting  aside  the  judgment 
therein,  and  permitting  said  defendant  or  defendants  to 
plead  therein  on  j)ayment  by  him  or  them  of  such  costs 
as  the  court  shall  deem  just;  and  thereupon  said  suit 
shall  be  proceeded  with  to  final  judgment  according  to 
law. 

Eev.  Stats.  §§  740,  742;  see  sec.  2  of  this  book. 

§  9.  Revival  on  death  of  party.— That  whenever 
either  party  to  a  final  judgment  or  decree  which  has  been 
or  shall  be  rendered  in  any  circuit  court  has  died  or  shall 
die  before  the  time  allowed  for  taking  an  appeal  or  bring- 
ing a  writ  of  error  has  exj^ired,  it  shall  not  be  necessary 
to  revive  the  suit  by  any  formal  proceedings  aforesaid. 

The  representative  of  such  deceased  party  may  file  in 
the  office  of  the  clerk  of  such  circuit  court  a  duly  certified 
copy  of  his  appointment,  and  thereux)on  may  enter  an 
appeal  or  bring  writ  of  error  as  the  party  he  represents 
might  have  done. 

If  the  party  in  whose  favor  such  judgment  or  decree 
has  rendered  has  died  before  appeal  taken  or  writ  of  error 
brought,  notice  to  his  representatives  shall  be  given  from 
the  supreme  court,  as  provided  in  case  of  the  death  of  a 
party  after  appeal  taken  or  writ  of  error  brought. 

Kev.  Stats.  §§  955, 956;  see  sec.  3  of  this  book. 

§  10.  Repeal.— That  all  acts  and  parts  of  acts  in  conflict 
with  the  provisions  of  this  act  are  hereby  repealed. 
March  3, 1875. 


JCTEISDICTION. 


§  1.   Jurisdiction— original,  concurrent,  appellate. 

—  That  the  circuit  courts  of  the  United  States  shall  have 
original  cognizance,  concurrent  loith  the  courts  of  the  sever- 
al States,  of  all  suits  of  a  civil  nature  at  common  laio  or  in 
equity,  lohere  the  matter  in  dispute  exceeds,  exclusive  of  costs, 
the  sum  or  value  of  five  hundred  dollars,  and  arising  under 
the  Constitution  or  lavjs  of  the  United  States,  or  treaties  made 
or  ivhich  shall  be  made  under  their  authority,  or  in  lohich 
the  United  States  are  plaintiffs  or  petitioners,  or  in  ivhich 
there  shall  be  a  controversy  betiveen  citizens  of  different 
States,  or  a  controversy  betiveen  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States,  or  a  contro- 
versy between  citizens  of  a  State  and  foreign  states,  citizens, 
or  subjects. 

And  shall  have  exclusive  cognizance  of  all  crimes  and 
offenses  cognizable  under  the  authority  of  the  United  States, 
except  as  otherwise  provided  by  law,  and  concurrent  juris- 
diction loith  the  district  courts  of  the  crimes  and  offenses 
cognizable  therein. 

But  no  person  shall  be  arrested  in  one  district  for  trial  in 
another  in  any  civil  action  before  a  circuit  or  district  court. 

And  no  civil  suit  shall  be  brought  before  either  of  said 
courts  against  any  person  by  any  original  process  or  pjroceed- 
ing  in  any  other  district  than  that  whereof  he  is  an  inhab- 
itant, or  in  which  he  shall  be  found  at  the  time  of  serving 
such  process  or  commencing  such  proceedings,  except  as 
hereinafter  provided. 

Xor  shall  any  circuit  or  district  court  have  cognizance  of 
any  suit  founded  on  contract  in  favor  of  an  assignee,  unless 


§  1  a  JURISDICTION.  52 

a  suit  might  have  been  prosecuted  in  such  court  to  recover 
thereon  if  no  assignment  had  been  made,  except  in  cases 
of  promissory  notes  negotiable  by  the  law  merchant  and  bills 
of  exchange. 

And  the  circuit  courts  shall  also  have  appellate  jurisdic- 
tion from  the  district  courts  under  the  regulations  and  re- 
strictions prescribed  by  law. 

Act  of  March  3, 187.5,  §  1  (Supp.  Rev.  Stats.  173). 

§  1  a.  Judicial  power  —  Constitutional  provis- 
ions.— Judicial  power  means  that  power  with  which 
courts  are  clothed  for  the  purpose  of  the  trial  and  deter- 
mination of  causes ;  i  the  j^ower  conferred  to  render  a 
judgment  or  decree. '^  The  jurisdiction  of  the  circuit 
courts  depends  exclusively  on  the  Constitution  and  laws 
of  the  United  States;  3  and  it  cannot  be  affected  by  State 
legislation. -t  Its  jurisdiction  is  limited;  but  the  presump- 
tion is,  that  a  cause  is  within  the  jurisdiction  till  the 
contrary  is  shown. ^  The  judicial  power  is  unavoidably 
in  some  cases  exclusive  of  all  State  authority,  and  in 
others  may  be  made  so  at  the  election  of  the  legislative 
body. 6  "  Shall  extend  "  is  used  in  article  iii,  section  2  of 
the  Federal  Constitution,  in  an  imperative  sense,  and 
imports  an  absolute  grant  of  power.'  Their  jurisdic- 
tion depends  exclusively  on  the  Constitution,  and  stat- 
utes passed  in  pursuance  thereof. ^  The  Constitution 
defines  the  limits  of  the  judicial  power,  but  Con- 
gress prescribes  how  much  of  it  is  to  be  exercised 
by  the  Federal  courts.^  They  are  of  limited  jurisdiction, 
and  can  exercise  no  jurisdiction  but  what  is  expressly 
conferred,  or  is  conferred  by  necessary  implication ;  lo  as 
the  power  to  punish  for  contemi^ts.i^  Although  of  inferior 
jurisdiction  in  the  language  of  the  Constitution,  their  pro- 
ceedings are  entitled  to  liberal  presumptions  in  favor  of 
their  regularity,  i-  An  inferior  court,  in  the  sense  of  the 
Constitution,  is  one  whose  judgment  may  be  reversed  on 
appeal. 1-3    Federal  courts  will  decline  jurisdiction,  as  a 


53  JURISDICTION.  §  1  b 

matter  of  comity,  wliere  the  State  court  has  custody  of 
the  property  and  the  subject-matter  of  the  action,  but  not 
after  trial  on  the  merits.!'^ 

1  U.  S.  V.  Arredondo,  6  Peters,  691 ;  Ex  parte  Gist,  26  Ala.  156;  Ban- 
ton  V.  "Wilson,  4  Tex.  400. 

2  Khode  Island  v.  Massachusetts,  12  Peters,  657. 

3  Gary  I'.  Curtis.  3  How.  236;  Sheldon  r.  Sill,  8  How.  441 ;  Scott  v.  San- 
ford,  19  How.  393 ;  Hubbard  v.  Northern  R.  R.  Co.  3  Blatchf .  84 ;  Bennett 
V.  Bennett.  Deady.  300;  Wisconsin  v.  Duluth,  2  Dill,  406;  Karahoo  v. 
Adams,  1  Dill.  344;  Harrisons.  Hadley,2Dill.229;  Sinithv.Allyn,!  Paine, 
486;  Livingstonr.Vanlngen, Paine,  45;  U.  S.  v.  Terrel,  Hemp.  411,422; 
U.  S.  V.  Alberty,  Hemp.  444 ;  White  v.  Fenner,  1  Mason, 520 ;  Ex  parte  Cab- 
rera, 1  Wash.  C.  C.  232;  Livingston  v.  Jefferson,  1  Brock.  203. 

4  Parsons  v.  Lyman,  5  Biatchf.  170;  Livingston  v.  Jefferson,  1 
Brock.  203. 

5  Turner  v.  Bank,  4  Dall.  8;  Livingston  r.  Van  Ingen,  1  Paine,  45. 

6  Martin  v.  Hunter,  1  Wheat.  304;  The  Moses  Taylor,  4  Wall.  411. 

7  Martin  v.  Hunter,  1  Wheat.  304. 

8  Mossman  v.  Higginson,  4  Dall.  12;  Hodgson  v.  Bowerbank,  5 
Cranch,  303;  Bank  v.Deveaux,  5  Cranch,61;  Amer.  Ins.  Co.  v.  Canter,  1 
Peters,  511;  Livingston  v.  Jefferson,  1  Brock.  203;  U.  S.  v.  Drennon, 
Hemp.  320;  U.  S.  v.  Alberty,  Hemp.  444. 

9  Turner  v.  Bank  of  N.  A.  4  Dall.  10;  Mclntyre  v.  Wood,  7  Cranch, 
504;  Kendall  v.  U.  S.  12  Peters,  616;  Cary  v.  Curtis,  3  How.  245;  Clarke 
V.  JonesviUe,  4  Am.  Law  Reg.  593. 

10  Turner  v.  Bank,  4  Dall.  9;  U.  S.  v.  Ta-wan-ga-ca,  Hemp.  304. 

11  U.  S.  V.  Hudson,  7  Cranch,  32;  Matt,  of  Meador,  1  Abb.  U.  S.  324. 

12  Turner  v.  Bank,  4  Dall.  8;  Griswold  v.  Sedgwick,  1  Wend.  126; 
Byers  v.  Fowler,  12  Ark.  218;  Erwin  v.  Lowry,  7  How.  172. 

13  Nugent  V.  State,  18  Ala.  52. 

14  Gilman  v.  Perkins,  13  The  Reporter,  257. 

§  1  b.  Power  of  Congress.— United  States  courts 
can  exercise  only  that  jurisdiction  which  is  conferred  on 
them  by  Congress,i  or  by  treaty. 2  Congress  may  say 
how  much  and  what  shall  vest  in  one  inferior  court,  and 
what  in  another.^  and  must  define  their  respective  juris- 
dictjons.4  How  jurisdiction  shall  be  acquired,  whether 
original  or  appellate,  and  the  mode  of  procedure,  are 
left  to  the  wisdom  of  the  legislature.^  So  Congress  may 
confer  original  jurisdiction  in  any  case  to  which  appellate 
jurisdiction  extends, ^  and  may  lawfully  provide  for  suits 
at  the  option  of  the  i^arties  on  all  controversies  between 
citizens  of  different  States."  In  the  first  three  class- 
es  of   cases   mentioned   in  this  section — i.  e.,  (1)  cases 


§    1  C  JURISDICTION.  54 

arising  under  the  Constitution  or  law  of  the  United  States, 
or  treaties  made  under  its  authority;  (2)  all  eases  affecting 
foreign  ambassadors,  ministers,  or  consuls;  (3)  all  cases 
of  admiralty  and  maritime  jurisdiction — the  jurisdiction  is 
exclusive;  s  as  questions  arising  on  treaties,  when  not 
political  questions,^  or  suits  arising  under  the  laws  of 
the  United  States,  i^  While  in  the  latter  class,  as  to  con- 
troversies, it  may  qualify  the  jurisdiction,  whether  origi- 
nal or  api3ellate.ii  It  may  invest  the  Federal  courts  with 
the  power  to  issue  writs. i^  Federal  courts  can  issue  writs 
onlj^  when  necessary  in  and  of  their  jurisdiction,  and  in  a 
case  pending.i3 

1  Ex  parte  Cabrera,  1  Wash.  C.  C.  235;  Magill  v.  Parsons,  4  Conn. 
317. 

2  The  British  Prisoners,  1  Wood.  &  M.  66;  U.  S.  r.  New  Bedford 
Bridge,  Wood.  <fc  M.  437;  Smitli  v.  Jackson,  1  Paine,  453. 

3  U.  S.  V.  New  Bedford  Bridge,  1  Wood.  &  M.  437. 

4  Osborn  r.  Bank,  9  Wheat.  738;  Turner  r.  Bank:,4Dall.  10;  Mcln- 
tvre  r.  Wood,  7  Cranch,  506;  Kendall  v.  U.  S.  12  Peters,  616;  Cary  r 
c;urtis,  3  Kow.  236;  Sheldon  v.  Sill,  8  How.  448. 

5  Mayor  v.  Cooper,  6  Wall.  247. 

6  Osborn  v.  Bank,  9  Wheat.  738;  U.  S.  v.  Bevans,  3  Wheat.  336; 
Jones  V.  Seward,  41  Barb.  272. 

7  Gaines  v.  Fuentes,  92  U.  S.  10. 

8  State  V.  McBride,  Rice,  400. 

9  Wilson  V.  Wall,  6  Wall.  83;  Ex  parte  Leon,  1  Edm.  Sel.  Cas.  301; 
U.  S.  r.  Lathrop,  17  Johns.  4;  U.  S.  v.  Campbell,  6  Hall  L.  J.  113;  Haney 
V.  Sharp,  1  Dana,  442. 

10  Fox  V.  Ohio,  5  How.  410;  Voorhees  v.  Frisbie,  8  Bank.  Keg.  1.54. 

11  Martin  r.  Hunter,  1  Wheat.  304;  The  Moses  Taylor,  4  Wall.  411. 

12  Desty  Fed.  Proc.  §  716,  and  cases  cited. 

13  Ex  parte  Everts,  7  Am.  Law  Reg.  79;  overruling  U.  S.  f.  Wil- 
liamson, 7  Am.  L.  Reg.  11. 

§  1  c.  Civil  cases  in  la-w  and  equity.— A  case  in 
law  and  equity  consists  in  the  riglit  of  one  party  as  well 
as  of  the  other,  and  arises  when  its  correct  decision  de- 
jiends  on  the  Constitution  or  laws  of  the  United  States;  i 
and  the  record  should  show  that  the  Constitution  or  some 
law  or  treaty  is  drawn  in  question.-  They  must  be  con- 
tined  to  the  cases  and  subjects  defined  by  the  acts  of 
Congress,  and  to  those  powers  which  the  high  court  of 


55  JURISDICTION.  §  1  C 

chancery  in  England  exercised  at  the  time  of  the  adop- 
tion of  the  Constitution.3  Cases  at  law  include  suits  in 
which  legal  rights  are  to  be  determined  as  distinguished 
from  those  in  which  equitable  rights  are  to  be  deter- 
mined; ^  but  a  case  can  only  be  considered  when  the 
subject-matter  is  submitted  in  the  form  prescribed  by 
law.5  Yet  they  will  enforce  equitable  rights,  whether 
they  originate  by  contract,  local  usage,  or  by  the  statute 
of  a  State  in  either  real  or  personal  actions; 6  and  al- 
though the  State  law  gives  exclusive  jurisdiction  to  a 
State  court;"  and  even  if  no  remedy  exists  in  the  State 
court.8  The  jurisdiction  embraces  suits  in  which  legal 
rights  are  to  be  determined,  as  distinguished  from  rights 
in  equity; 9  and  if  the  parties  have  the  required  citizen- 
ship, it  has  jurisdiction  to  enforce  the  remedy  given 
by  a  State  statute. lo  Suits  in  which  relief  is  sought, 
according  to  the  principles  and  practice  in  equity  cases, 
are  "  cases  in  equity,"  ^^  the  true  test  being  whether  there 
is  a  plain,  speedy,  and  adequate  remedy  at  law.i^  The 
jurisdiction  in  suits  in  equity  coincides  and  is  coexten- 
sive with  the  jurisdiction  in  chancery  as  exercised  in 
England,  and  is  not  affected  by  the  jurisprudence  of  the 
State  in  which  the  court  sits  as  to  practice  and  proced- 
ure ;i3  but  the  rule  adopting  the  equity  jurisprudence  of 
England  applies  only  to  the  remedy ;  i^  and  if  a  right 
exists  within  a  State  which  cannot  be  enforced  by  law, 
relief  may  be  sought,  even  though  it  originates  under  a 
State  statute  or  a  local  usage.i-5  The  jurisdiction  in 
equity  must  be  exercised  within  the  limits  prescribed  by 
the  Constitution.  16 
See^os^,  §10  a. 

1  U.  S. ».  Williams,  4  Cranch  C.  C.  392 ;  Cohens  v.  Virginia.  6  Wheat. 
379;  Osborn  v.  Bank,  9  Wheat.  738;  Ex  parte  Milligau,  4  Wall.  114; 
Jones  V.  Seward,  41  Barb.  272. 

2  Mills  V.  Brown,  16  Peters,  52.5;  Lawlor  v.  Walker,  14  How.  149; 
Eaihoad  Co.  v.  Rock,  4  Wall.  180;  Ryan  v.  Thomas,  4  AVall.  603. 

3  Forstain  v.  Ravenel,  17  How.  369;  Loringr.  Marsh,  2  Cliff.  469; 
Baker  v.  Riddle,  Bald.  394;  Pierpont  v.  Fowle,  2  Wood.  &  M.  23. 

4  Parsons  r.  Bedford,  3  Peters,  433;  Fenn  v.  Holme,  21  How.  486; 
and  see  Strotherv.Lncas,  6  Peters,  768;  12  Peters,  410;  Parish  f.  Ellis,  16 


§  1  d  JURISDICTION.  56 

Peters,453;  Barnetti?.  Butterworth,  U  How.  669;  Slieirburu  v.  DeCor- 
dova,  24  How.  423. 

5  Robinson  r.  Campbell,  3  Wheat.  212;  Osborn  v.  Bank,  9  Wheat. 
738;  Parsons  v.  Bedford,  3  Peters,  433. 

6  Clark  v.  Smith.  13  Peters,  195;  Lorman  v.  Clarke,  2  McLean,  56S. 
See  Smith  v.  RaUroad  Co.  99  U.  S.  398. 

7  Payne  v.  Hook,  7  Wall.  425;  Parsons  v.  Lyman,  5  Blatchf .  170. 

8  Fletcher  v.  Morey,  2  Story,  555. 

9  Kohl  i;.  U.  S.  91  U.  S.  367. 

10  Goshornjj.  Alexander,  2  Bond,  15S;  U.  S.  v.  Block,  3  Biss.  208; 
Ex  parte  Biddle,  2  3Iasou,  472:  Railway  Co.  v.  Whitton,  13  Wall.  270; 
Broderick's  WiU,  21  Wall.  503. 

11  Robinson  t'.  Campbell,  3  Wheat.  212;  U.  S.  v.  Howland,  4  Wheat. 
108;  Lorman  w.  Clarke,  2  McLean,  568;  Gordons.  Hobart,  2  Sum.  401; 
Pratt  V.  Nonham,  5  Mason,  95;  Cropper  v.  Coburn,  2  Curt.  465. 

12  U.  S.  V.  Howland,  4  Wheat.  108;  Boyce  v.  Grundy,  3  Peters,  215; 
Gaines  v.  Chew,  2  How.  619;  Williams  v.  Benedict,  8  How.  107. 

13  Robinson  r.  Campbell,  3  Wheat.  212;  Wheeling  Bridge  Case,  13 
How. 421;  Dodge  r.  Woolsey,  18  How.  331;  Barber  w.  Barber,  21  How. 
582;  Payne f.  Hook,  7  Wall.  425;  Lorman  r.  Clarke,  2  McLean, 568;  Fletch- 
er V.  Morey,  2  Story,  555;  Gordon  v.  Hobart,  2  Sum.  401. 

14  Meade  v.  Beale,  Taney,  339. 

15  Clark  V.  Smith,  13  Peters,  195;  Fitch  v.  Creighton,  24  How.  159; 
Lorman  v.  Clarke,  2  McLean,  568;  Goshorn  v.  Alexander,  2  Bond,  158. 

16  Baker  v.  Biddle,  Bald.  394;  Pierpont  v.  Fowle,  2  Wood.  &  M.  23. 

§  1  d.  Amount  in  controversy.— The  amount  in 
dispute  must  exceed  five  hundred  dollars. i  By  matter  in 
dispute  is  meant  the  subject  of  litigation,  and  for  which 
suit  is  brought.-  The  value  of  the  matter  in  dispute  is  to 
be  determined  by  reference  to  the  amount  claimed  in  the 
declaration,  iDctition,  or  complaint; ^  and  the  whole  plead- 
ing will  be  examined,  and  not  merely  the  prayer  for  re- 
lief;-^  in  a  case  of  detinue; 5  in  an  action  on  a  money 
demand;  6  in  an  action  on  contract;  ~>  in  an  action  of  eject- 
ment, the  value  of  the  interest  claimed;  s  in  an  action  of 
covenant  on  a  bond ;  &  in  an  action  sounding  in  damages ;  i*' 
in  an  action  for  a  penalty;  ^i  or  on  penal  bonds,!"^  in  an 
action  to  recover  back  taxes  illegally  exacted  ;13  but  the 
amount  due  to  each  of  several  bringing  suit  must  exceed 
five  hundred  dollars,  i^  Where  the  nature  of  the  action 
does  not  require  the  value  of  the  thing  demanded  to  be 
stated  in  the  declaration,  evidence  may  be  given  of  the 
value  of  the  matter  in  dispute  at  the  trial. is    If  there  are 


57  JURISDICTION.  §  1  e 

separate  counts  upon  separate  causes  of  action,  the 
amount  claimed  is  the  aggregate  of  the  sums  claimed. i6 
A  bill  to  abate  a  nuisance  may  be  maintained,  although 
the  damage  sustained  does  not  amount  to  live  hundred 
dollars,  as  the  value  of  the  object  to  be  removed  governs. i'^ 

1  Walker  v.  United  States,  4  Wall.  163:  West.  U.  Tel.  Co.  v.  Levi, 
47  Ind.  552.    See  Lee  v.  Watson,  1  WaU.  337. 

2  Culver  v.  Crawford,  4  Dill.  239. 

3  Gordon  v.  Lonsrest,  16  Peters,  97;  Kanouse  v.  Martin,  15  How.  198; 
Muns  V.  Dupont,  2  Wasli.  C.  C.  463;  Ladd  v.  Tudor,  3  Wood.  &  M.  325. 

4  Culver  v.  Crawford,  4  Dill.  239. 

5  Bennett  v.  Butterworth,  8  How.  124. 

6  Culver  v.  Crawford,  4  Dill.  239. 

7  Sherman?;.  Clark,  3  McLean,  91. 

8  Hartshorn  v.  Wright,  Peters  C.  C.  64;  Crawford  v.  Bumham,  4 
Am.  L.  T.  228;  West.  U.  Tel.  Co.  v.  Levi,  47  Ind.  552;  Sherman  r.  Clark, 
3  McLean,  91;  Lanning  v.  Dolph,  4  Wash.  C.  C.624;  Green  v.  Liter,  8 
Cranch,  229. 

9  Victor  S.  M.  Co.  v.  Mingos,  25  Pitts.  L.  J.  125. 

10  Hulsekamp  v.  Teel,  2  Dall.  358;  Murphy  v.  Howard,  Hemp,  205. 

11  Martin  v.  Taylor,  1  Wash.  C.  C.  1. 

12  United  States  v.  McDowell,  4  Cranch,  316;  Postmaster-Gen.  v. 
Cross,  4  Wash.  C.  C.  326. 

13  King  V.  Wilson,  1  DUl.  555. 

14  King  V.  Wilson,  1  Dill.  555;  Woodman  v.  Latimer,  2  Fed.  Rep.  842; 
Adams  v.  Board,  McCahon,  2?5. 

15  Ex  parte  Bradstreet,  7  Peters,  634. 

16  Anderson  v.  Gerding,  3  Wood,  487;  Judson  v.  Macon  Co.  2  Dill. 
213. 

17  Mississippi  &  Mo.  R.  K.  Co.  v.  Ward,  2  Black,  485. 

§  1  e.    Suits  arising  under  the  Constitution.— For 

the  judicial  power  to  extend  to  a  violation  of  the  Consti- 
tution, it  must  be  a  case  in  law  or  in  equity.!  jt  is  the 
final  arbiter  of  constitutional  construction,  and  may  re- 
ceive from  the  legislature  the  power  to  construe  every 
constitutional  law.2  The  act  must  be  clearly  subversive 
of  the  Constitution  3— a  clear  violation  ^ — and  the  objection 
must  not  be  doubtf  ul.s  It  extends  over  statutes,  whether 
passed  by  a  State  legislature  or  by  Congress,  which  are 
claimed  to  be  in  contravention  of  the  Constitution  of  the 
United  States.^  So  the  circuit  court  has  jurisdiction  of  a 
suit  arising  under  a  State  law  violating  the  obligations  of 


§  1  f  JURISDICTION .  58 

a  contract; "  but  not  to  statutes  claimed  to  be  void  under 
a  State  Constitution. s  The  circuit  court  lias  jurisdiction 
of  a  suit  brought  to  restrain  the  construction  of  a  bridge 
over  the  navigable  waters  of  the  United  States,  the  erec- 
tion of  which  is  authorized  by  an  act  of  Congress.  ^ 
See  post,  §10/. 

1  Cohens  v.  Virgiaia,  6  Wheat.  264.  See  Railroad  Co.  v.  Mississippi, 
102  U.  S.  135. 

2  Vanhorne  v.  Dorrance,  2  Dall.  304;  Martiu  v.  Hunter,  1  Wheat. 
304;  Coliens  v.  Virginia,  6  Wheat.  264;  Ableman  v.  Booth,  21  How.  506; 
S.  C.  3  Wis.  1 ;  Mayor  v.  Cooper,  6  Wall.  247. 

3  Turner  v.  Athans,  6  Neb.  54. 

4  Central  C.  R.  R.  Co.  v.  Twenty-third  St.  11.  R.  Co.  54  How.  Pr. 
168;  Bennington  v.  Park,  50  Vt.  178. 

5  XT.  S.  V.  Jackson,  3  Sawy.  62;  People  v.  Brinkerhoff,  68  N.  Y.  259. 

6  Calder  v.  Bull,  3  Dall.  399;  Marbury  v.  Madison,  1  Crauch,  137; 
Dartmouth  Coll.  v.  Woodward,  4  Wheat.  625. 

7  State  Lottery  Co.  v.  Fitzpatrick,  3  Wood,  222. 

8  Calder  v.  Bull,  3  Dall.  399. 

9  Miller  r.  New  York,  13  Blatchf.  479. 

§  If.  Suits  under  United  States  statutes  and 
treaties. — Congress  may  grant  exclusive  jurisdiction  to 
United  States  courts  over  suits  arising  under  tlie  laws  of 
the  United  States. ^  Their  jurisdiction  covers  every  legis- 
lative act  of  Congress,-  so  they  are  the  instruments 
provided  in  administering  security  to  an  officer  acting  in 
the  discharge  of  his  duties  ;3  as  seeking  protection  under 
a  law  is  a  case  arising  under  that  law.^  If  the  riglit  of 
property  in  the  subject-matter  is  given  or  created  by  an 
act  of  Congress,  it  is  within  the  judicial  power  of  the 
United  States,  o  A  suit  arises  out  of  a  law  of  the  United 
States  when  the  controversy  turns  upon  the  proper  con- 
struction or  application  of  such  law;  6  hut  it  must  be 
showu  how  the  action  arises  under  the  law;"  and  it  is 
not  sufficient  that  the  construction  of  the  law  is  incident- 
ally brought  in  question;  s  so  the  circuit  court  has 
jurisdiction  of  a  suit  involving  the  construction  of  land 
patents  granted  by  the  United  States;  ^  or  of  actions 
under  the  bankrupt  law;io  or  under  the  iiatent  laws;ii 
or  where  a  party  claims  title  under  the  revenue  laws, 


59  JURISDICTION.  §  1  g 

'.Then  lie  shows  that  his  title  in  that  respect  is  disputed;  12 
as  the  right  of  a  party  must  have  its  origin  in  the  law;  13 
so  it  has  jurisdiction  on  a  supersedeas  bond  given  upon 
suing  out  a  writ  of  error  to  the  supreme  court,  as  this 
arises  under  a  law  of  the  United  States ;  1^  but  a  suit  based 
on  false  representations  arises  out  of  a  fraud,  and  not  out 
of  an  act  of  Congress. is  A  State  may  file  a  bill  to  restrain 
a  collector  from  levying,  under  the  internal  revenue  laws, 
on  property  owned  by  the  State.  16  if  the  action  arises 
under  a  treaty,  the  matter  in  dispute  must  exceed  five 
hundred  dollars. i' 
See  post,  %  10/. 

1  ¥oxv.  Ohio,  5  How.  410;  Voorhees  v.  Frisbie,  8  Bank.  Keg.  154. 
See  N.  O.  Railroad  Co.  v.  Mississippi,  102  U.  S.  140;  Cohens  v.  Virginia, 
eWhart.  264;  Osborn  v.  Bank,  9  Wheat.  738;  Mayor  t;.  Cooper,  6  WaU. 
247;  Gold  W.  &  W.  Co.  v.  Keyes,  96  U.  S.  199;  Tennessee  v.  Davis,  100 
U.  S.  257.    See  Railroad  Co.  v.  Mississippi,  102  U.  S.  135. 

2  Ableman  v.  Booth,  21  How,  506;  Mayor  v.  Cooper,  6  "Wall.  247. 

3  Hodgson  v.  Milward,  3  Grant,  412. 

4  Hodgson  V.  Milward,  3  Grant,  412;  Kulp  v.  Rickets,  3  Grant,  420. 

5  Bank  v.  Roberts,  4  Conn.  323. 

6  Hatch  V.  WaUamet  Iron  B.  Co.  11  The  Reporter,  630. 

7  Dowell  V.  Griswold,  5  Sawy.  39. 

8  Dowell  V.  Griswold,  5  Sawy.  39. 

9  Hills  V.  Hompton,  4  Sawy.  195. 

10  Tifft  V.  Iron  Clad  Manuf.  Co.  16  Blatchf.  48. 

11  Celluloid  Manuf.  Co.  v.  Goodyear  D.  V.  Co.  13  Blatchf.  375. 

12  Ex  parte  Smith,  94  U.  S.  455. 

13  Dowell  V.  Griswold,  5  Sawy.  39. 

14  Miller  v.  New  York,  13  Blatchf.  469. 

15  Seymour  v.  Phillips,  7  Biss.  460. 

16  Merserole  v.  U.  P.  R.  R.  Co.  6  Blatchf.  356. 

17  Georgia  v.  Atkins,  1  Abb.  U.  S.  22;  S.  C.  35  Ga.  315. 

18  Baker  v.  Portland,  5  Sawy.  566. 

§  1  g.    Suits  arising  out  of  the  patent  laws.— 

The  circuit  courts  have  plenary  jurisdiction  over  all 
actions,  suits,  or  controversies,  both  in  law  and  in  equity, 
arising  under  the  patent  laws;  1  and  an  action  which 
raises  the  question  of  infringement  is  an  action  arising 
under  the  law,  and  it  may  involve  the  construction  of  a 
contract  as  well  as  the  patent.^    But  if  the  contract  is  not 


§  1  S  JURISDICTION.  60 

provided  for  and  regulated  by  an  act  of  Congress,  the 
court  lias  no  jurisdiction,^  nor  will  jurisdiction  extend  to 
a  controversy  arising  under  a  contract  concerning  a  pat- 
ent subsequently-  to  be  obtained.^  If  the  iiarties  are 
citizens  of  different  States,  and  the  amount  claimed  ex- 
ceeds five  hundred  dollars,  the  court  has  jurisdiction 
over  a  claim  arising  on  a  contract ;  ^  but  if  the  parties  are 
citizens  of  the  same  State,  it  cannot  entertain  a  bill  to 
compel  an  assignment  of  the  patent  as  agreed  for; 6  and 
the  mere  fact  that  the  bill  prays  for  an  accounting  will 
not  confer  jurisdiction."  The  court  will  not  entertain  a 
suit  to  have  the  interest  of  a  patentee  sold  to  satisfy  a 
judgment  issued  from  a  State  court.s  AYhere  a  party's 
rights  arise  under  a  contract,  he  cannot  maintain  a  bill 
in  equity  against  patentee  and  purchaser  who  purchased 
in  violation  of  the  license,  without  a  regard  to  the  citizen- 
ship of  the  parties.^  If  an  infringement  is  proved,  the 
court  will  take  cognizance  of  matters  incidental,  as 
where  defendant  has  forfeited  his  right  under  a  license.i" 
If  the  parties  are  citizens  of  the  same  State,  the  court 
has  no  jurisdiction  over  a  bill  to  obtain  the  cancellation 
of  a  license  on  account  of  the  invalidity  of  the  patent.^ 
If  the  circuit  court  in  a  patent  case  has  jurisdiction  over 
the  subject-matter  and  the  parties,  its  decree  cannot  be 
collaterally  questioned.!^  The  circuit  court  has  no  juris- 
diction to  vacate  a  patent  on  the  ground  of  false  sugges- 
tion, or  that  the  government  had  no  right  to  grant  it;i3 
nor  can  a  junior  patentee  maintain  an  action  against  a 
prior  patentee  to  obtain  an  adjudication  that  his  patent 
does  not  conflict  with  a  prior  patent.i^  xhe  jurisdiction 
at  law  and  in  equity  is  concurrent,  and  a  party  may 
select  his  forum,  though  he  seeks  the  recovery  of  money 
only;  i^  and  if  compelled  to  go  into  a  court  of  equity  to 
obtain  a  discovery,  the  court,  after  the  discovery,  will 
proceed  on  the  merits. ^6  A  bill  for  a  discovery  cannot  be 
maintained  against  a  corporation. i7  The  jurisdiction 
conferred  in  equity  exists  independently  of  State  laws, 


61  JURISDICTION.  §  1  g 

and  is  similar  to  the  equity  jurisdiction  in  England;  is 
and  want  of  equity  does  not  imply  a  defect  of  jurisdic- 
tion. It  is  only  when  the  court  is  without  power  to  pass 
upon  the  subject-matter,  or  to  grant  the  relief  sought, 
that  its  jurisdiction  may  be  questioned.i^  A  court  of 
equity  has  jurisdiction  to  enjoin  the  use  of  a  patented  in- 
vention, and  for  an  account  of  profits,  although  an  action 
at  law  may  be  maintained  to  recover  damageSj^i)  and  a 
suit  for  an  account  of  profit  is  properly  brought  in 
equity.2i  Where  the  complainant  seeks  an  account  and 
discovery,  the  court  may  award  damages  for  the  breach 
of  a  contract.-^  Although  the  patent  has  expired,  and 
an  injunction  cannot  issue,  yet  an  account  can  be  ordered 
and  other  relief  granted.-^  A  suit  for  an  accounting  can- 
not be  maintained  unless  there  are  actual  profits  result- 
ing from  the  infringement  susceptible  of  estimation.24  If 
defendant  dies  pending  suit,  complainant  may  revive  the 
suit  against  his  personal  representatives  to  obtain  au 
account  of  profits. -5 

1  Nevius  V.  Johnson.  3BlatcM.  80;  Perry  v.  Corning,  6  Blatchf.  134; 
Gordon  v.  Anthony,  16  Off.  Gaz.  1135.  But  see  contra,  Sayles  v.  Richmond 
F.  &  P.  K.  K.  Co.  3  Hughes,  172. 

2  Littlefield  v.  Perrj-,  21  Wall.  205 ;  Magic  Ruffle  Co.  v.  Elm  City  Co. 
13  Blatchf.  151. 

3  Wilson  V.  Sandford,  10  How.  99;  Hartell  v.  Pilghman,  99  TJ.  S. 
547;  Goodyear  v.  Day,  1  Blatchf.  565;  Goodyear  v.  Union  Rub.  Co.  4 
Blatchf.  63;  Magic  Ruffle  Co.  v.  Elm  City  Co.  13  Blatchf.  151;  Blanch- 
ard  V.  Sprague,  1  Cliff.  288. 

4  Brooks  V.  Stolley,  3  McLean,  523;  Nesmith  v.  Calvert,  1  Wood.  & 
M.34. 

5  Bloomer  t- .  Gilpin,  4  Fish.  Pat.  Cas.  50. 

6  Perry  v.  Littlefield,  2  Fed.  Rep.  4&i;  Burrr.  Gregory,  2  Paine, 
426. 

7  Burr  v.  Gregory,  2  Paine,  426. 

8  Ryan  v.  Lee,  10  Fed.  Rep.  917. 

9  Hill  V.  Whitcomb,  1  Holmes,  317. 

10  Brooks  V.  StoUey,  3  McLean,  523;  Bloomer  v.  Gilpin,  4  Fish.  Pat. 
Cas.  50. 

11  Merserole  v.  Union  Paper  C.  Co.  6  Blatchf.  356. 

12  Allen  v.  Blunt,  1  Blatchf.  480. 

13  Att.-Gen.  v.  Rumford  Wks.  9  Off.  Gaz.  1062. 

14  Celluloid  Manuf .  Co.  v.  Goodyear  D.  V.  Co.  13  Blatchf.  375 
Desty  Removal.— 6. 


§§  1  h-i  JURISDICTION.  62 

15  Perry  v.  Corning,  6  Blatchf.  134:  Anthony  v.  Carroll,  9  Off.  Gaz. 
199.    Contra :  Sanders  v.  Logan,  2  Fish.  Pat.  Cas.  167. 

16  Magic  Ruffle  Co.  v.  Elm  City  Co.  14  Blatchf.  109, 

17  Vaughan  v.  Cent.  P.  K.  Pt.  Co.  14  Pacif.  L.  Rep.  274. 

18  Allen  v.  Blunt,  1  Blatchf.  480. 

19  McMillin  v.  Barclay,  5  Fish.  Pat.  Cas.  189. 

20  McMillin  v.  Barclay,  5  Fish.  Pat.  Cas.  189, 

21  Dibble  v.  Augur,  7  Blatchf.  86. 

22  Magic  Ruffle  Co.  v.  Elm  City  Co.  13  Blatchf.  151, 

23  Imlav  V.  Railroad  Co.  4  Blatclif.  227;  Wood  Paper  Co.  r.  Glen's 
Falls  Co.  8  Blatchf.  513;  McComb  v.  Beard,  10  Blatchf.  350;  Blank  v. 
Manuf.  Co.  3  Wall.  Jr.  196;  Vaughan  v.  Cent.  P.  R.  R.  Co.  4  Sawy.  280; 
Howes  V.  Nute,  4  Fish.  Pat.  Cas.  263;  Smith  v.  Baiter,  31  Leg.  Int.  126; 
Jordan  v.  Wallace,  5  Fish.  Pat.  Cas.  185. 

24  Vaughan  v.  Cent.  Pac.  R.  R.  Co.  14  Pacif.  L.  Rep.  274. 

25  Smith  v.  Balicr.  31  Leg.  Int.  126. 

§  Ih.  Suits  under  copyright  and  trade-mark 
la"ws. — A  court  of  equity  lias  jurisdiction  over  a  suit  for 
an  infringement  of  a  copyright, i  and  of  an  action  for  the 
infringement  of  a  trade-mark,  without  regard  to  the 
amount  in  controversy  or  the  citizenship  of  the  parties.^ 
Both  the  title  and  the  infringement  may  be  adjudicated 
without  having  been  first  determined  by  law;  3  but  it  has 
no  jurisdiction  in  equity  to  protect  the  rights  of  an  author 
at  common  law,  where  the  parties  are  citizens  of  the  same 
State; 4  nor  if  the  controversy  arises  out  of  a  contract, 
and  not  under  the  statute;  ^  nor  to  enforce  penalties  and 
forfeitures  incurred  under  the  statute.  ^ 

1  Pierpont  v.  Fowle,  2  Wood.  &  M.  23. 

2  Duwell  V.  Bohmer,  10  Ch.  L.  N.  356. 

3  Farmer  v.  Calvert  Pub.  Co.  5  Ch.  L.  N.  1, 

4  Boucicault  v.  Hart,  13  Blatchf.  47. 

5  Little  V.  Hall,  18  How.  165;  Polte  v.  Derby,  5  McLean,  328, 

6  Stevens  v.  Gladding,  17  How.  447;  Stevens  v.  Cady,  2  Curt.  200. 

§  1  i.  "Where  the  government  is  a  party.  —  The 

judicial  power  extends  to  controversies  in  which  the 
United  States  is  a  party,i  so  the  United  States  may  in- 
stitute a  proceeding  at  common  law,  to  condemn  lands 
for  the  use  of  the  government ;  2  or  to  condemn  property 
used  in  aid  of  insurrection  .3    It  may  file  a  bill  in  equity 


,3  JURISDICTION.  §  1  j 

to  set  aside  a  fraudulent  conveyance;  or  bring  an  action 
on  a  contract,  unless  a  different  mode  is  prescribed  by- 
law; 4  or  on  a  bond  given  to  secure  the  landing  of  a  cargo 
under  the  embargo  laws ;  ^  or  for  the  breach  of  a  bond  in 
an  action  brought  by  a  postmaster.6  The  jurisdiction 
reaches  to  controversies  where  the  State  is  a  party;"  but 
only  where  it  is  a  party  to  the  record;  8  or  when  the  gov- 
ernor is  sued  in  his  official  capacity.^  The  jurisdiction  of 
the  Federal  courts  depends  on  two  points  :  first,  as  arising 
from  the  subject-matter  ;  second,  as  dependent  on  the 
character  of  the  parties ;  i"  and  when  it  depends  on  the 
character  of  the  parties  and  not  of  the  subject-matter, 
Congress  cannot  vest  jurisdiction  in  the  Federal  courts. n 
The  giving  of  the  supreme  court  original  jurisdiction  in 
cases  where  a  State  is  a  party  does  not  withhold  from 
Congress  the  power  to  vest  in  circuit  courts  concurrent 
jurisdiction  in  such  cases.i^ 

1  Mississippi  v.  Johnson,  4  Wall.  498;  Georgia  v.  Stanton,  6  Wall.  50. 

2  U.  S.  V.  Smith,  1  Hughes,  347. 

3  Union  Ins.  Co.  ?;.  U.  S.  6  Wall.  759. 

4  Dugan  V.  U.  S.  3  Wheat.  172;  U.  S.  v.  Barker,  1  Paine,  156. 

5  Durousseau  v.  U.  S.  6  Cranch,  307. 

6  P.  M.  Genl.  v.  Early,  12  Wheat.  136. 

7  N.  y.  V.  Conn.  4  Dall.  1 ;  N.  J.  v.  N.  Y.  5  Peters,  290;  Ga.  v.  Brails- 
ford,  2  Dall.  402;  Oswald  t).N.Y. 2 Dall.  415;  Chisholmi;.  Ga.  2Dall.  419; 
Grayson  y.  Va.  3Dali.  320;  Ulass.i;.  R.  I.  12  Peters, 755;  Ga.  v.  Madrazo.  1 
Peters,  122;  Luther  i;.  Borden, 7  How.  55;  Mowery  t;.  Indiana  &  C.R.  R. 
Co.  4  Biss.  80. 

8  Osborn  f .  Bank,  9  Wheat.  738;  New  York  v.  Connecticut,  4  Dall 
3;  Fowler  v.  Lindsay,  3  Dall.  411;  U.  S.  v.  Peters,  5  Cranch.  115. 

9  Kentucky  v.  Ohio,  24  How.  97;  Georgia  v.  Madrazo,  1  Peters,  116. 

10  Celluloid  Qo.v.  Goodvear,  13  Blatchf.  375;  citing  Cohens  ?;.  Vir- 
ginia, 6  Wheat.  264;  Littlefitld  v.  Perry,  21  Wall.  205. 

11  .'^tate  V.  Trust  of  University,  5  Nat.  Bk.  Reg.  466;  Wisconsin  v. 
Duluth,  2  Dill.  406;  explained  in  State  v.  Lewis,  12  Fed.  Rep.  1. 

12  State  V.  Lewis,  12  Fed.  Rep.  1,  citing  Pennsylvania  v.  Wheeling 
Br.  Co.  13  How.  520- 

§  1  j.  Controversies  between  citizens  of  differ- 
ent States. — The  jurisdiction  of  the  circuit  court  ex- 
tends to  controversies  between  citizens  of  different 
States;  i  and  the  situation  of  the  parties,  and  their  char- 


§   1  i  JURISDICTION.  64 

acters,  determine  the  jurisdiction;  2  but  it  has  no  jurisdic- 
tion of  a  swit  between  i)arties  of  the  same  State  ;3  and  if 
neither  party  is  a  citizen  of  the  State  where  suit  is  brought 
it  has  no  jurisdiction;  •*  but  a  citizen  of  a  State  where  suit 
is  brought  may  sue  a  citizen  of  another  State.^  A  party 
who  resides  in  a  State  with  his  family,  and  carries  on 
business  there,  is  deemed  a  citizen  of  that  State;  ^  but  if 
his  residence  is  only  temporary,  and  for  a  special  purpose 
with  the  animo  revertendi,  he  does  not  thereby  become  a 
citizenJ  To  have  the  right  to  sue,  a  party  must  be  a  citi- 
zen of  some  State;  so  a  citizen  of  a  Territory  cannot  insti- 
tute an  action  in  the  circuit  court,  although  he  be  joined 
with  the  citizen  of  a  State;  s  so  a  citizen  of  the  District  of 
Columbia  cannot  maintain  an  action  in  the  circuit  court.^ 
Prior  to  the  Act  of  March  3rd,  1875,  the  circuit  court  had 
jurisdiction  only  when  the  suit  was  between  a  citizen  of 
the  State  and  a  citizen  of  another  State;  and  if  there  were 
several  plaintiffs  and  several  defendants,  each  one  of 
each  class  must  have  possessed  the  requisite  character  as 
to  citizenship.  10  So,  under  prior  statutes,  two  citizens  of 
different  States  could  not  have  joined  as  plaintiffs  in  a 
suit  in  one  State  against  a  citizen  of  a  third  State;  n  but 
it  was  not  necessary  that  all  the  defendants  should  be 
citizens  of  the  same  State,  iDrovided  none  of  them  were 
citizens  of  the  same  State  with  the  plaintiff;  i^  yet  the 
joinder  of  a  defendant  not  served,  and  who  does  not  ap- 
pear, who  is  a  citizen  of  the  same  State  as  i^laintiff,  will 
not  defeat  the  jurisdiction ;  i3  but  if  defendant  was  served 
with  process,  and  was  not  a  mere  nominal  party,  it  de- 
feated the  jurisdiction.!^  As  to  citizenship,  the  plaintiff 
being  assignee  of  one  who  was  a  citizen  of  the  same  State 
as  defendant  cannot  sue  in  the  United  States  courts. i^ 
See  post,  §  IQ(/. 

1  Ohio  &  M.  E.  R.  Co.  r.  Wlieeler,  1  Black,  286.  Biit  see  Hope  Ins. 
Co.  V.  Boardman,  n  Crancli,  57.  No  matter  of  what  State  the  plaintiff 
is  a  citizen :  Brooks  v.  Bailey,  9  Fed.  Kep.  438. 

2  Conolly  v.  Taylor,  2  Peters,  556. 

3  Van  Antwerp  r.  Hubbard,  8  Blatchf.  285;  Livingston  v.  Van  Ingen, 
1  Paine,  45;  S.  C.  (i  Johns.  507;  Merserole  v.  U.  P.  C.  Co.  6  Blatchf.  356; 
Teal  V.  Walker,  10  Ch.  L.  N.  131. 


65  JTEISDICTION.  §  1  Is 

4  Conolly  v.  Taylor,  2  Peters,  556;  Shute  v.  Davis.  Peters  C.  C.  431 ; 
Goodyear  v.  Day,  1  Blatclif.  565;  Kelly  v.  Harding,  5  BlatcM.  502. 

5  Harrison  v.  Rowan,  Peters  C.  C.  489;  Kitchen  v.  Strawbridge,  4 
Wash.  C.  C.  84. 

6  Knox  V.  Greenleaf,  4  Dall.  360;  Byrne  v.  Holt,  2  Wash.  C.  C.  282. 

7  Prentiss  V.  Barton,  1  Brock.  389;  Cooper  r.  Galbraith,  3  Wash.  C. 
C.  546;  Gardner  t;.  Sharp,  4  Wash.  C.C. 609;  Keedt;.  Bertrand,  4  Wash. 
C.  C.  514. 

8  New  Orleans  v.  Winter,  1  Wheat.  91. 

9  Hepburn  v.  Ellzey,  2  Cranch,  445;  New  Orleans  r.  Winter,  1 
Wheat.  92:  Gassiest.  Ballon,  G  Peters,  761;  Scott  v.  Jones,  5  How.  343; 
Barney  v.  Baltimore, 6  Wall. 280;  Texas  v.  White.  7  Wall.  700;  Railroad 
Co.  V.  Harris,  12  Wall.  65;  Westcott  v.  Fairfield,  Peters  C.  C.  45;  Harts- 
horne  v.  Wright,  Peters  C.  C.  64. 

10  Strawbridge  v.  Curtis,  3  Cranch,  267;  Coal  Co.  v.  Blatchford,  11 
WaU.  172. 

11  Moffat  V.  Solev,  2  Paine,  103.  See  Bank  v.  Slocomb,  14  Peters,  60; 
Irvine  v.  Lowry,  14  Peters,  293;  Taylor  v.  Cook,  2  McLean,  516;  Clear- 
water v.  Meredith,  21  How.  489. 

12  Railroad  Co.  v.  Letson,  2  How.  554. 

13  Doremus  v.  Bennet,  4  McLean,  224. 

14  Ketchum  v.  Farmers'  etc.  Co.  4  McLean.  1 ;  Coal  Co.  v.  Blatchford, 
11  WaU.  172;  Lew.  3Iach.  Co.  Case,  18  Wall.  553. 

15  Leutze  v.  Bulterfield,  1  Abb.  N.  C.  367,  reversing  S.  P.  ante,  18. 

§  1  k.  Jurisdiction  over  corporations.— Citizen- 
ship as  to  jurisdiction  means  only  residence  ;i  so  the 
circuit  court  may  have  jurisdiction  over  a  controversy 
on  account  of  residence,  independently  of  the  subject- 
matter;  2  and  for  the  purposes  of  jurisdiction,  corporations 
are  deemed  citizens  of  the  State  which  created  them; 3 
and  this,  irrespective  of  the  individual  citizenship  of  its 
members; 4  so  a  corporation  may  sue  and  be  sued  in  the 
circuit  court. 5  It  may  institute  an  action  in  another 
State,  although  associated  with  a  corporation  of  that 
State. 6  If  a  corporation  is  created  by  the  laws  of  two 
States,  it  is  deemed  a  separate  body  in  each  State,  and 
cannot  sue  a  citizen  of  either  State  in  the  circuit  court."^ 
But  a  citizen  of  one  of  the  States  may  sue  it  in  the  other 
State ;  s  so  where  the  legislature  of  a  State  has  confirmed 
the  charter  of  a  corporation,  a  citizen  of  that  State  may 
maintain  an  action  against  the  corporation  in  the  circuit 
court. 9  Where  railroad  corporations,  created  under  the 
laws  of  different  States,  operating  through  such  States  la 


§  1  k  JURISDICTION  66 

one  connected  line,  tLe  consolidated  corporation  is  to  be 
considered  a  citizen  of  either  State ;  i"  "but  a  corporation 
which  merely  leases  a  road  in  another  State  to  operate 
therein  does  not  thereby  become  a  citizen  of  such  State ;ii 
and  the  mere  appointment  of  an  agent  on  whom  process 
may  be  served  will  not  make  a  corporation  a  citizen.i^ 
A  national  bank  of  another  State  may  sue  in  the  Federal 
courts,  although  defendants  are  citizens  of  the  same  State 
as  that  in  which  the  bank  is  established. i3  A  State  legis- 
lature has  the  right  to  exclude  a  foreign  corporation ;  i-* 
but  it  cannot  deprive  it  of  its  right  to  sue  in  a  Federal 
court  by  exacting  a  stipulation  not  to  remove  a  cause  from 
the  State  court. J^  The  rule  as  to  citizenship  applies  to 
public  municipal  corporations;  ^^  so  a  municipal  corx)ora- 
tion  may  sue  and  be  sued  in  the  circuit  court;  i"^  but  a  State 
cannot  maintain  an  action  in  the  circuit  court. ^^ 
See  post,  %  10  h. 

1  Gassiest'.  Ballou.  6  Peters,  761;  Shelton  v.  Tifflin,  6  How.  162; 
Cooper  V.  Galbraith,  3  Wash.  C.  c.  .i46;  Butler  v.  Farusworth,  4  Wash. 
CO.  101. 

2  Nesmith  v.  Calvert,  1  Wood.  &  M.  34. 

3  Bank  of  U.  S.  v.  Deveaux.  5  Cranch,  61 ;  Hope  Ins.  Co.  v.  Board- 
man,  5  Cranch,. 57;  U.  s.  r.P]auters'ii'k.9Wheat.410;  Bankr.  Slocomb, 
14  Peters,  60;  Louisville  etc.  K.  11.  Co.  v.  Letson,  2  How.  314;  Wheedon  v. 
Camden  &  A.  R.  R.  Co.  4  Am.  Law  Reg.  296;  Marshall  v.  Bait.  &  O.  R. 
K.  Co.  16  How.  314;  Pvundlet-.  Del.  &  li.  Cau.  Co.  14  How.  80;  Covington 
D.  Co.  V.  Shepherd.  20  How.  227 ;  Lafayette  Ins.  Co.  v.  French,  18  How. 
404;  Railway  Co.  r.  Whitton,  13  Wall.  270;  Ohio  <fc  M.  R.  R.  Co.  v.  Wheel- 
er,  1  Black, 286;  Dennlstown  v.  X.  Y.  &  N.  H.  R.  R.  Co.  1  Hi!t.  62;  Bona- 
parte v.  Camden  &  A.  R.  R.  Co.  Bald.  205;  Greeley  i?.  Sm'th,  3  Story, 
76;  Bliven  v.  N.  E.  Rcrew  Co.  3  Blatchf.  Ill;  Barney  v.  Globe  Bank,  5 
Blatchf.  107 ;  West.  U.  Tel.  Co.  v.  Dickuison,  40  lud.  444 ;  Oakey  v.  Bank, 
14  La.  515;  Rosenfeld  v.  Adams  Exp.  Co.  21  La.  An.  233;  Herryfordf. 
^tna  Ins.  Co.  42  Mo.  14S;  sranlev  v.  Chicago  etc.R.  R.  Co.  62  Mo.  508: 
Holden  v.  Putnam  F.  Ins.  Co.  46  N.  Y.  1 ;  Shelby  v.  Hoffman,  7  Ohio  St. 
50;  Fargo  r.  McVicker,  33  How.  Pr.  1;  Barclay  v.  Commissioners,  I 
Woods,  254. 

4  Ohio  &  M.  R.  R.  Co.  v.  Wlieeler.  1  Black,  286;  Railroad  Co.  v. 
Harris,  12  Wall.  65;  Pomeroy  v.  N.  Y.  &  N.  H.  R.  R.  Co.  4'  Blatchf.  120; 
Hatch  V.  Chicago,  R.  I.  &  P.  R.  R.  Co.  6  Blatchf.  105;  Trust  Co.  v.  Ma- 
QuiUan,3  Dill.  379;  Monnett  v.  Milwaukee  etc.R.  R.  Co.  3  Dill.  460; 
Quigley  v.  Central  R.  R.  Co.  11  Nev.  350;  Shaft  v.  Phoenix  L.  lus.  Co. 
67  N.  Y.  544;  Bait.  &  O.  R.  R.  Co.  v.  Cary,  28  Ohio  St.  208. 

5  Bank  of  U.  S.  v.  Deveaux.  5  Cranch,  61 ;  Parsons  v.  Greenville  & 
C.  R.  R.  Co.  1  Hughes,  279;  Minot  v.  Phila.  W.  &  B.  R.  R.  Co.  2  Abb.  U. 
S.  323. 

6  Chicago  &  N.  W.  R.  R.  Co.  v.  Chicago  &  P.  R.  R.  Co.  6  Biss.  219. 

7  Ohio  &  M.  R.  R.  Co.  v.  Wheeler,  1  Black,  286. 


67  jumsDiCTioN.  §  1 1 

8  Muller  v.  Dows,  94  U.  S.  444:  Railway  Co.  v.  Whitton,  13  Wall. 
270;  Vose  v.  Reed,  1  Woods,  647;  Culbertson  f.  Wabash  Nav.  Co.  4 
McLean,  544. 

9  Marshall  v.  Bait.  &  0. 11.  R.  Co.  16  How.  314  ;  Wheeling  v.  Mayor, 
1  Hughes,  90. 

10  Railway  Co.  V.  Whitton,  13  Wall.  270;  Muller  v.  Dows,  94  U.  S. 
444:  St.  Lawrence  A.  &  T.  R.  R.  Co.  v.  Indiana  and  St.  L.  R.  R.  Co.  12 
Ch.'  L.  N.  73. 

11  Bait.  &  Ohio  R.  R.  Co.  v.  Koontz,  3  Morr.  Tr.  34;  Same  v.  Wight- 
man,  29  Gratt.  431;  Same  v.  Cary,  28  Ohio  St.  208;  Erie  Railway  Co.  v. 
Stringer,  32  Ohio  St.  468;  Brownell  v.  Troy  &  B.  R.  R.  Co.  3  Fed.  Rep. 
761. 

12  Hatch  V.  Chicasro,  R.  I.  &  P.  R.  R.  Co.  6  Blatchf.  105;  Owen  v. 
N.  y.  Life  Ins.  Co.  1  Hughes,  322;  Hunter  v.  Royal  Canadian  Ins.  Co.  3 
Hughes,  234;  West.  U.  Tel.  Co.  v.  Dickinson.  40  Ind.  444;  Atlas  Mut.  Ins. 
Co.  V.  Byrus,  45  Ind.  133;  Fisk  v  Chicago,  R.  I.  &  P.  R.  R.  Co.  53  Barb. 
472;  Hobbs  v.  ^Manhattan  Ins.  Co.  56  Me.  417;  Morton  v.  Mut.  Ins.  Co. 
105  in  ass.  141;  Herryford  v.  Mtna  Ins.  Co.  42  Mo.  148;  Stevens  v.  Phoe- 
nix Ins.  Co.  41  N.  Y.  149;  DeCamp  v.  N.  J.  Mut.  L.  Ins.  Co.  2  Sweeny, 
481;  Ellerman  v.  New  Orleans  M.  &T.R.  R.  Co.  2  Woods,  120;  Insurance 
Co.  17.  Francis,  11  Wall.  210;  Huderv.  Ins.  Co.  25  Wis.  143.  Contra:  New 
York  Piano  Co.  v.  N.  H.  Steamboat  Co.  2  Abb.  Pr.  N.  S.  357;  Continen- 
tal Ins.  Co.  V.  Casey,  27  Gratt. 216;  People  t;.  Judge,  21  Mich. 577;  Home 
Ins.  Co.  V.  Davis.  29  Mich.  238. 

13  Union  Nat.  Bank  v.  Chicago,  3  Ch.  L.  N.  369;  Bk.  of  Omaha  v. 
Douglas  Co.  3  Dill.  298;  Commercial  Bank  i\  Simmons,  6  Ch.  L.  N.344, 

14  Doyle  v.  Contl.  Ins.  Co.  94  U.  S.  535;  State  v.  Doyle,  40  Wis.  220; 
Relfe  V.  Rundle,  103  U.  S.  222. 

15  Metropolitan  L.  Ins.  Co.  v.  Harper,  3  Hughes,  260. 

16  Cowles  V.  Mercer  Co.  7  Wall.  118;  Barclay  v.  Levee  Comm'rs,  1 
Woods,  254;  Tanstall  v.  Madison,  30  La.  An.  471. 

17  Cowles  V.  Mercer  Co.  7  Wall.  118;  McCoy  v.  Washington,  3  Phila. 
290. 

18  Georgia  v.  Brailsford,  3  Dall.  1;  State  v.  Babcock,  4  Wash.  C.  C. 
345;  Wisconsin  v.  Duluth,  2  Dill.  406. 

§  1 1.  National  banks.— Congress  may  provide  that 
a  national  bank  may  sue  and  be  sued  in  the  national 
courts. 1  For  jurisdictional  purposes,  national  banks  are 
deemed  citizens  of  the  State  in  which  they  are  located,^ 
and  they  may  sue  a  citizen  of  another  State  in  the  Fed- 
eral courts; 3  and  they  may  sue  in  the  Federal  courts, 
although  the  defendants  are  citizens  of  the  same  State  in 
which  the  bank  is  established.^  Section  629  of  the  Eevised 
Statutes  authorizes  national  banks  to  sue  or  be  sued  in 
the  circuit  courts,^  irrespective  of  citizenship  or  amount;  ^ 
it  refers  to  associations  as  parties,  and  not  to  liabilities, 
or  causes  of  action;'  but  it  does  not  invest  the  circuit 
courts  with  exclusive  jurisdiction;   their  jurisdiction  is 


§  1  m  jcEiSDiCTiox.  68 

only  concurrent  with  that  of  the  State  courts,  s  It  cannot 
bring  suit  in  the  circuit  court  in  another  district  unless 
the  amount  is  over  five  hundred  dollars ;  ^  and  a  circuit 
court  has  no  jurisdiction  of  an  action  by  the  assignee  of  a 
national  bank  to  restrain  the  sale  of  bonds  deposited  to 
secure  its  notes.^^^  A  national  bank  may  sue  the  maker  of 
a  note  assigned  to  it;  ^  or  may  sue  on  a  coupon  of  a  mu- 
nicipal bond.i-  The  mere  grant  to  a  corporation  of  the 
right  to  sue  does  not  imply  a  right  to  sue  in  the  Federal 
courts. 13 

1  Osborn  v.  Bank,  9  "Wheat.  738;  Bank  of  U.  S.  v.  Northumberland 
B'k,  4  Wash.  C.  C.  1U8;  Magill  v.  Parsons.  4  Conn. 317;  Bank  r. Roberts, 
4  Conn.  323;  County  of  Wilson  v.  Nat.  Bk.  103  U.  S.  770. 

2  Chatham  Nat.  Bank  v.  Merch.  Nat.  Bank,  1  Hun,  702;  Davis  v. 
Cook,  f)  Nev.  134;  Manuf.  Nat.  Bank  v.  Baack,  2  Abb.  U.  S.  232;  S.  C.  8 
Blatehf.  137;  Cooke  j;.  State  Nat.  Bank,  52  N.  Y.  96. 

3  Park  Bank  v.  Nichols,  4  Biss.  315;  Manuf.  Nat.  Bank  v.  Baack,  2 
Abb.  U.  S.  232;  S.  C.  8  Blatehf.  137. 

4  Union  Nat.  Bank  v.  Chicasro.  3  Ch.  L.  N.  369;  First  Nat.  Bank  v. 
Dou!?las  Co.  3  Dill,  298;  Commercial  Nat.  Bank  v.  Summons,  6  Ch.  L. 
N.  344;  S.  C.  8  id.  164. 

5  First  Nat.  Bank  v.  Douglas  Co.  3  Dill.  298.  Subd.  10  of  this  section 
was  not  repealed  by  the  Act  of  1875:  Third  Nat.  Bk.r.  Harrison,  8  Fed. 
Bep.  721. 

6  Kennedy  v.  Gibson,  8  Wall.  49=:;  Union  Nat.  Bank  v.  Chicago,  3 
Biss.  82;  Maint?.  Second  Nat.  Bank. 6  Biss.2G;  First  Nat.  Bank  v.  Doug 
las  Co.  3  Dill.  298;  Foss  v.  First  Nat.  Bk.  3  Fed.  Rep.  185.  But  see 
St.  Louis  Nat.  Bk.  v.  Brinkman,  1  Fed.  Ptcp.  46. 

7  Commercial  Nat.  Bank  v.  Summons,  8  Ch.  L.  N.  164. 

8  Pettilon  V.  Noble,  7  Biss.  449. 

9  St.  Louis  Nat.  Bank  v.  Buukman,  1  Fed.  Kep.  45. 

10  Van  Antwerp  v.  Hulburd,  8  Blatehf.  282. 

11  MitcheU  v.  Walker,  36  Leg.  Int.  64. 

12  First  Nat.  Bank  v.  Bennington,  16  Blatehf.  53. 

13  Bank  v.  Deveaux,  5  Cranch,  61 ;  Bank  of  U.  S.  v.  Martin,  5  Peters, 
479. 

§  Im.  When  an  alien  is  a  party.— Under  the  first 
clause  of  section  2,  article  3,  of  the  Constitution  of  the 
United  States,  jurisdiction  is  given  to  the  Federal  courts 
in  cases  wLere  a  foreign  state  or  individual  is  a  party. i 
So  it  extends  to  all  cases  affecting  ambassadors,  although 
they  are  not  parties  to  the  record .2  A  citizen  of  the  State 
may  sue  an  alien  in  the  Federal  courts,  although  the  alien 
be  a  foreign  consul.3    The  controversy  must  be  one  in 


69  JURISDICTION.  §  1  m 

which  a  citizen  of  the  State  and  an  alien  are  parties,**  or 
a  nominal  citizen  suing  for  the  use  of  an  alien;  ^  and  one 
party,  either  plaintiff  or  defendant,  must  be  a  citizen, 6  as 
the  circuit  court  has  no  jurisdiction  of  a  controversy  be- 
tween aliens."  For  the  purpose  of  jurisdiction,  a  foreign 
corporation  is  deemed  an  alien;  ^  so  of  resident  unnatu- 
ralized foreigners;  9  and  one  who  has  merely  filed  his 
declaration  of  intentions  to  become  a  citizen  is  an  alien;  i*^ 
but  an  Indian  tribe  is  not  a  foreign  nation ;  n  nor  is  an 
Indian  a  foreign  citizen  or  subject.-'-  A  foreign  sovereign 
may  sue  a  citizen  in  the  United  States  courts;  i-3  and  a 
resident  alien  may  sue  a  citizen, i^  although  he  sues  as 
trustee. 15  So  an  executor  and  residuary  legatee  may  sue 
in  the  Federal  courts,  though  both  are  aliens. 16  And  if 
an  alien  holds  lauds  he  may  sue  a  citizen  for  any  matter 
affecting  his  rights. i" 

1  Chappedelaine  v.  Dechenaux,  4  Crancli,  308;  Browne  v.  Strode,  5 
Cranch.  303. 

2  Osborn  v.  Bank,  7  "Wheat.  738;  U.  S.  v.  Ortega,  11  Wheat.  467;  U. 
S.  V.  Ravara,  2  Dall.  297. 

3  St.  Luke's  Hosp.  t-.  Barclay,  3  Blatchf.  259;  Graham  v.  Stucken,  4 
Blatchf .  60. 

4  Hepburn  v.  Ellzey,  2  Cranch,  445;  Mossman  v.  Higginson,  4  Dall. 
12;  New  Orleans  v.  Winter,  1  Wheat.  91;  Jackson  v.  Tweutyman,  2 
Peters,  136;  Hodgson  v.  Bowerbank,5  Cranch,  303;  Gassies  v.  Ballou, 
6Peters,76l;  Brown  f.  Keene, 8 Peters,  112;  Picquetr.  Swan. 4  Mason, 
443;  5  Mason,  35;  Case  r.  Clarke,  5  Mason,  70;  Catlett «.  Pacific  Ins.  Co. 
1  Paine,  594;  Coopers.  Galbraith,  3  Wash.  C.  C.  546;  Prentiss  v.  Breu- 
nan,  2  Blatchf.  164;  Wilson  v.  City  Bank,  5  Bank.  Reg.  270. 

5  Browne  v.  Strode,  5  Cranch,  303. 

6  Jackson  v.  Twentyman,  2  Peters,  136;  Baird  v.  Byrne,  3  Wall.  Jr. 
1;  Prentiss  iJ.Brenuan,  2  Blatchf.  162;  Ptaleau  i;.  Bernard,  3  Blatchf. 
244. 

7  Petrocokino  v.  Stuart,  37  Leg.  Int.  30. 

8  Soci.  for  Prop.  Gosp.  v.  New  Haven,  8  Wheat.  464. 

9  Bairdr.  Byrne,  3  Wall.  Jr.  1. 

10  Baird  v.  Byrne,  3  Wall.  Jr.  1. 

11  Cherokee  Na.  v.  Georgia,  5  Peters,  1;  Worcester  v.  Georgia,  6 
Peters,  515. 

12  Karrahoo  v.  Adams,  1  Dill.  344. 

13  King  V.  Oliver,  2  Wash.  C.  C.  429. 

14  Breedlove  r.  Nicolet,  7  Peters,  413;  Bonaparte  v.  Camden  &  A. 
K.  K.  Co.  Bald.  205. 

15  Chappedelaine  v.  Dechenaux,  4  Cranch,  306. 

16  Chappedelaine  v.  Dechenaux,  4  Cranch,  306. 

17  Bonaparte  v.  Camden  &  A.  K.  R.  Co.  Bald.  205. 


§§  1  n-O  JURISDICTION.  70 

§  1  n.  In  criminal  cases.— The  circuit  court  has  ju- 
risdiction over  crimiual  offenses  i  after  Congress  has 
defined  the  crime  and  conferred  the  jurisdiction.^  The 
jurisdiction  is  limited  to  crimes  committed  within  the 
district,^  in  any  place  under  the  exclusive  authority  of 
the  United  States. "*  The  jurisdiction  relates  to  the  prose- 
cution against  persons,  and  not  to  informations  in  rem ;  ^ 
to  the  trial,  and  not  to  the  creation  of  the  crime. ^  It  has 
no  original  jurisdiction  over  a  qui  tarn  action."  It  has 
jurisdiction  over  a  crime  committed  by  a  foreign  consul.^ 
It  has  jurisdiction  to  try  the  question  whether  an  offense 
has  been  committed.^  United  States  courts  have  no  juris- 
diction over  offenses  at  common  law.io 

Seei305f,  §2Tc. 

1  U.  S.  V.  HoUiday,  3  Wall.  407. 

2  U.  S.  V.  Hall,  98  U.  S.  343;  U.  S.  v.  Mann,  1  GaU.  3;  U.  S.  v.  Hud- 
son, 7  Cranch,  32;  U.  S.  v.  Coolidge,  1  Wheat.  415. 

3  U.  S.  V.  Jackalow,  1  Black,  484;  U.  S.  v.  Alberty,  Hemp.  444;  U. 
S.  r.  Britton,  2  Mason.  464;  U.  S.  v.  Wood,  2  Wheel.  C.  C.  325;  U.  S.  v. 
Bickford,  4  BlatcM.  337. 

4  U.  S.  V.  Cornell,  2  Mason,  91. 

5  Ketland  v.  The  Cassius,  2  Dall.  365. 

6  U.  S.  V.  New  Bedford  Bridge,  1  Wood.  &  M.  401. 

7  Evans  v.  Bollen,  4  Dall.  342. 

8  U.  S.  V.  Eavara,  2  Dall.  297. 

9  U.  S.  V .  Keese,  4  Sawy.  629. 

10  Ex  parte  Bollman,  4  Cranch,  75;  Turner  v.  Bank  of  N.  A.  4  Dall. 
10;  U.  S.  V.  Laucaaler,  2  McLean,  431 ;  Kitchen  v.  Strawbridge, 4  Wash. 
C.  C.  84;  U.  S.  V.  New  Bedford  Bridge,  1  Wood.  &  M.  401. 

§  1  o.    Assignment  to  confer  jurisdiction.— The 

circuit  court  has  jurisdiction  of  a  controversy  between 
citizens  of  different  States,  although  property  was  con- 
veyed to  one  of  the  parties  to  enable  the  court  to  enter- 
tain the  suit;  1  but  the  transfer  must  be  absolute ;2  and 
not  merely  colorable,^  nor  collusive;  •*  and  a  party 
having  an  equitable  title  may  maintain  an  actiou  at  law 
thereon. 5  The  circuit  court  has  jurisdiction  in  a  real 
action  for  the  possession  of  land  brought  by  an  assignee 
of  the  note  and  mortgage.  ^  A  grantee  of  title  to  land 
may  maintain  an  action,  although  his  grantor  could  not." 


71  JTJKISDICTION.  §  1  P 

1  McDonald  v.  Smalley,  1  Peters,  620;  Smith  v.  Kernochen,  7  How. 
198;  Osborne  v.  Brooklvn  City  R.  R.  Co.  5  Blatchf.  3tJ6;  Foote  v.  Han- 
coclf,  15  Blatchf.  Zi'i;  Newby  v.  Oregon  Cent.  R.  R.  Co.  ISawy.  63; 
Briggs  V.  French,  2  Sum.  251 ;  Hoyt  v.  Wright,  4  Fed.  Rep.  168. 

2  De  Laveaga  v.  Williams,  5  Sawy.  573. 

3  Maxwell  v.  Levy,  2  Ball.  381;  Jones  v.  League,  18  How.  76;  Bar- 
ney V.  Baltimore,  6  Wall.  280.    See  Richardson  v.  Mattisou,  5  Biss.  31, 

4  Marion  v.  Ellis,  9  Fed.  Rep.  367;  S.  0. 10  Fed.  Rep.  410;  Williams 
V.  Townof  Nottawa,  3  Morr.  Trans.  256;  Delaveagav.  WiUiams,  5Sawy. 
574;  CofBn  v.  Haggin,  11  Fed.  Rep.  219. 

5  Browne  v.  Browne,  1  Wash.  C.  C.429;  Browner.  Arbunkle,  1  Wash. 
C.  C.  484. 

6  Whiting  v.  Wellington,  10  Fed.  Rep.  810. 

7  Briggs  V.  French,  2  Sum.  251;  Seckel  v.  Backhaus,  7  Biss.  354. 
Contra:  Maxwell  v.  Levy,  2  Dall.  381;  Hurst  v.  McNeil,  1  Wash.  C. 
C.70. 

§  1  p.  Assignee  of  choses  in  action.  Choses  in 
action  include  all  debts  and  all  claims  for  damages  for 
breach  of  contract;  i  all  contracts,  promises,  and  cove- 
nants for  the  delivery  of  the  chattels  or  money; ^  open 
accounts  or  unliquidated  accounts,  as  well  as  promissory 
notes; 3  and  all  torts  when  connected  with  contracts;* 
but  not  torts  arising  from  a  breach  of  some  duty  to  which 
the  law  attaches  damages;  ^  nor  does  the  term  apply  to 
an  action  by  an  assignee  to  recover  the  possession  of  the 
chose  in  action  or  damages  for  its  wrongful  detention,^  as 
an  action  of  replevin  to  recover  a  bank  bill; "  nor  does  the 
term  "  assignee  "  in  the  proviso  in  this  section  include  ex- 
ecutors and  administrators ;  ^  but  an  assignment  by  oper- 
ation of  law,  as  to  an  assignee  in  insolvency  proceedings,  is 
within  the  proviso;  ^  or  of  a  receiver  in  such  proceedings. i^ 
The  phrase  "  promissory  notes  negotiable  by  the  law 
merchant "  contemplates  notes  in  the  hands  of  a  bona  fide 
purchaser  for  value,  subject  to  no  equities  in  favor  of  the 
maker.ii  All  cases  not  specially  within  the  exception  in 
this  section  are  within  the  general  operation  of  the  act;  i^ 
for  if  the  assignor  could  maintain  the  action  at  the  time 
the  suit  was  commenced,  the  assignee  may  sue.i^  The 
assignee  of  an  appearance  bail  may  sue,  although  the 
marshal  and  defendants  are  citizens  of  the  same  State.^* 
The  holder  of  a  foreign  bill  of  exchange  may  sue  in  the 


§  1  p  JURISDICTION.  72 

circuit  court,i5  or  of  a  bank  bill;  i^  or  he  may  sue  a  stock- 
holder, although  the  note  is  payable  to  bearer.i^  The 
holder  of  a  note  may  sue  thereon  in  the  Federal  courts, 
although  the  nominal  payee  could  not,i8  or  although  the 
payee  indorsed  it;  ^^  and  so,  where  maker  and  payee  were 
citizens  of  different  States ;  20  but  if  both  maker  and  payee 
are  citizens  of  the  same  State,  an  indorsee  cannot  sue  in 
the  Federal  courts; 21  nor  can  he  sue  a  remote  indorser  if 
the  intermediate  indorser  could  not;  22  but  if  the  in- 
dorsee and  the  immediate  indorser  are  citizens  of  different 
States,  he  may  sue  in  the  circuit  court,23  although  the 
intermediate  indorser  could  not.24  If  a  note  does  not, 
under  the  laws  of  the  State,  possess  the  qualities  of  a 
negotiable  instrument,  the  assignee  cannot  sue.25  The 
assignee  of  a  note  and  mortgage,  if  of  the  requisite  citi- 
zenship, may  iile  a  bill  to  foreclose  in  the  circuit  court;  26 
but  if  they  are  assigned  by  delivery,  he  cannot  maintain 
the  action  if  the  assignor  and  mortgagor  are  citizens  of 
the  same  State; 27  so  of  the  assignee  of  a  bond  and  mort- 
gage.28  The  assignee  of  a  municipal  bond,  if  negotiable, 
may  sue  in  the  circuit  court; 29  or  of  a  negotiable  bond, 
although  the  obligor  and  the  person  to  whom  it  was 
issued  were  citizens  of  the  same  State. ^o  A  coupon  paya- 
ble to  bearer  is  negotiable  by  the  law  merchant,^!  and  the 
holder  may  sue  in  the  Federal  courts; 32  although  the 
party  from  whom  he  received  it  could  not  maintain  the 
a(ition.33  An  equitable  assignee  of  a  claim  to  an  account 
cannot  sue  if  his  assignor  could  not.^^  The  assignee  of  a 
judgment  against  a  foreign  debtor  may  file  a  bill  in  the 
circuit  court  to  set  aside  a  fraudulent  conveyance  made 
by  the  debtor;  35  and  so  can  the  assignee  of  a  judgment 
against  an  indorser  of  a  bill  of  exchangers  If  the  as- 
signee obtains  judgment  on  a  note  he  may  sue  to  enforce 
a  lien  on  certain  property  of  the  judgment  debtor.^"  An 
assignee  may  prosecute  an  action  founded  on  a  tort  with- 
out regard  to  the  citizenship  of  the  assignor;  ss  so  of  the 
assignee  of  a  right  of   action  for  damages  for  failure  to 


73  JURISDICTION.  §  1  P 

protect  a  note  from  protest.-53  "Where  a  party  claims 
through  an  assignment,  he  must  affirmatively  show  that 
the  action  miglit  liave  been  sustained  by  the  assignor.^o 
Since  the  Act  of  1875  the  assignee  of  a  chose  in  action 
may  sue  in  the  Federal  court.^ 
See  post,  §  10  k. 

1  Bushnell  r.  Kennedy,  9  Wall.  387. 

2  Sheldon  v.  Sill,  8  How.  441. 

3  Sere  v.  Pitot,  6  Crancli,  332;  "Wilkinson  v.  "Wilkinson,  2  Curt.  582. 

4  Bushnell  r.  Kennedy,  9  "Wall.  387. 

5  Barney  v.  Globe  Bank,  5  Blatchf.  107. 

6  Deshler  r.  Dbdge,  16  How.  622. 

7  Deshler  v.  Dodge,  16  How.  622. 

8  Chappedelaine  r.  Dechenaux,  4  Cranch,  306;  Childress  v.  Emory, 
8  Wheat.  642;  Mayer  v.  Foulkrod,  4  Wash.  C.  C.  349. 

9  Sere  v.  Pitot,  6  Cranch,  332. 

10  Bradford  v.  Jenks,  2  McLean,  130. 

11  Gregg  V.  Weston,  7  Biss.  360. 

12  Briggs  V.  French,  2  Sum.  251. 

13  Chamberlain  v.  Eckert,  2  Biss.  126;  but  see  Thaxter  v.  Hatch,  6 
McLean,  68. 

14  Bobyshall  v.  Oppenheimer,  4  Wash.  C.  0. 482. 

15  Buckner  v.  Finley,  2  Peters,  586. 

16  Wood  V.  Dmnmer,  3  Mason,  308. 

17  Bullard  v.  Bell,  1  Mason,  243. 

18  Bank  r.  Wistar,  2  Peters,  318;  Smith  v.  Clapp,  15  Peters,  125; 
Bonnaftee  v.  Williams,  3  How.  574;  Halstead  v.  Lyon,  2  McLean,  226; 
Sacketti;.  Davis,  3  McLean,  101;  Bullard  v.  Bell,  1  Mason,  243;  Towne 
v.  Smith,  1  Wood.  <fc  M.  115.  As  to  holder  of  an  accommodation  note, 
seeNoellj;.  Mitchell,  4  Biss.  346;  of  a  non-negotiable  note,  see  Shuford 
v.  Cain,  1  Abb.  U.  S.  302. 

19  Varner  v.  West,  1  Wood,  493. 

20  White  v.  Leary,  3  Dill.  378;  Kirkham  v.  Hamilton,  6  Peters,  20. 

21  Keary  v.  Bank,  16  Peters,  89;  Gibson  v.  Chew,  16  Peters.  315; 
Dromgoole  v.  liaiik,  2  How.  241;  Coffee  v.  Planters'  Bank,  13  How. 
183;  AVilles  v.  Newberry,  4  McLean,  226;  Shuford  v.  Cam,  1  Abb.  U.  S. 
302;  Small  v.  King,  5  McLean,  147. 

22  Molian  v.  Torrance,  9  Wheat.  537. 

23  Young  r.  Brjan,  6  Wheat.  146;  Evans  v.  Gee,  11  Peters,  80;  Coffee 
t>.  Planters'  Bank,  13  How.  Is3;  Campbell  v.  Jordan,  Hemp.  534;  Den- 
nison  v.  Lamed,  6  McLean,  4H6;  Codwise  v.  Gleason,  3  Day,  3. 

24  Wilson  v.  Fisher,  Bald.  133;  MiUedollar  v.  BeU,  2  Wall.  Jr.  334. 

25  Greggt".  Weston,  7  Biss.  360. 

26  Seckel  v.  Backhaus,  7  Biss.  354. 

27  Mersman  v.  Werger,  3  Fed.  Rep.  378. 

28  Sheldon  v.  Sill.  8  How.  441;  Hill  r.  Winne,  1  Biss,  275.  Contra: 
Dundas  v.  Bowler,  3  McLean,  204. 

Desty  Removal.— 7. 


§§1  q-r  JURISDICTION.  74 

29  Porter  v.  Janesville,  3  Fed.  Ret).  617;  Halsey  v.  TownsMp,  3  Fed. 
Kep.  364. 

30  White  v.  Vermont  &  M.  Pi..  R.  Co.  21  How.  575;  Lexington  v.  But- 
ler, 14  Wall.  282;  Bradley  v.  Williams,  3  Hughes,  26. 

31  Pettit  V.  Hope,  2  Fed.  Rep.  623. 

32  Thomson  v.  Lee  Co.  3  Wall.  327;  McCoy  v.  Washington,  3  Phila. 
290;  Pettit  r.  Hope,  2  Fed.  Rep.  623. 

33  Cooper  v.  Thompson,  13  Blatchf.  434.  See  Clark  v.  Janesville,  1 
Biss.  9s. 

34  Wilkinson  v.  Wilkinson,  2  Curt.  582. 

35  Dexter  v.  Smith,  2  Mason,  303. 

36  Bean  v.  Smith,  2  Mason,  252. 

37  Ober  v.  Gallagher,  93  U.  S.  199. 

38  Van  Bokkelin  v.  Cook,  5  Sawy.  587. 

39  Barney  v.  Globe  Bank,  5  Blatchf.  107. 

40  Tm-ner  v.  Bank,  4  Dall.  8;  Bradley  v.  Ehines,  8  Wall.  393. 

41  Von  Bokkelin  v.  Cook,  5  Sawy.  587. 

§  1  q.  Territorial  limit  of  jurisdiction.— A  court 
created  within  aud  for  a  particular  territory  is  bounded 
in  the  exercise  of  its  power  by  the  limits  of  such  terri- 
tory, i  "Whatever  may  be  the  extent  of  the  jurisdiction 
over  the  subject-matter  in  a  suit,  in  respect  to  jurisdiction 
over  persons  and  property,  it  can  only  be  exercised  within 
the  limits  of  the  judicial  district. -^  The  circuit  court  has 
jurisdiction  only  over  the  inhabitants  of  the  district,  or 
l^ersons  found  therein,  and  served  with  process.^  So 
where  a  citizen  of  Kew  Hampshire  aud  a  citizen  of  Geor- 
gia sued  a  citizen  of  Massachusetts  in  New  York,  where 
he  was  arrested,  the  court  had  no  jurisdiction  ;4  but  where 
there  are  two  districts  in  a  State,  a  citizen  of  such  State 
is  liable  to  suit  in  either  district,  if  served  with  process.'^ 

1  Picquet  v.  Swan,  5  Mason,  35 ;  Ex  parte  Graham,  3  Wash.  C.  C.  456. 

2  Tolaud  V.  Sprague,  12  Peters,  300;  Picquet  v.  Swan, 5  Mason,  35. 

3  Pollard  v.  Dwight,  4  Cranch,  424;  Anderson  v.  Shaffer,  10  Fed. 
Rep.  266. 

4  Moffat  V.  Soley,  2  Paine,  103. 

5  McIVIicken  ?j.  Webb,  11  Peters,  25;  Vore  v.  Fowler,  2  Bond,  294; 
Locomotive  Co.  v.  Erie  Ry.  Co.  10  Blatchf.  292. 

§  Ir.  Concurrent  jurisdiction.— In  a  transitory 
action,  a  right  arising  under  or  a  liability  imi)osed  by 
either  the  common  law  or  a  State  statute  may  be  asserted 


:.j  juEisDicTio>'.  §  1  r 

and  enforced  in  the  Federal  court,  i  \Yliere  the  State  stat- 
ute gives  a  right,  the  same  may  be  asserted  or  enforced  in 
the  Federal  courts  whenever  the  citizenship  of  the  parties 
or  the  nature  of  the  subject  will  permit.^  The  jurisdiction 
of  a  United  States  court  is  not  affected  by  a  subsequent 
action  brought  in  the  State  court.^  So  where  two  suits 
are  brought  on  different  facts,  seeking  different  relief, 
they  may  be  brought  respectively  in  the  State  and  Fed- 
eral court.4  The  institution  of  a  suit  to  foreclose  a  con- 
tract relating  to  real  estate,  in  a  State  court,  will  not 
deprive  the  Federal  court  of  jurisdiction  to  foreclose  liens 
against  parts  of  the  same  real  estate  where  the  two  suits 
involve  a  different  controversy.^  Where  the  subject- 
matter  and  the  parties  are  before  the  court  in  a  foreclos- 
ure for  default  in  some  of  the  installments,  it  has 
jurisdiction  even  though  suit  is  pending  in  another  court 
on  some  former  installment,  and  its  acts  cannot  be  col- 
laterally attacked. 6  The  circuit  court  has  concurrent 
jurisdiction  with  the  probate  court  in  actions  against  a 
county.'  In  cases  of  a  dual  controversy  between  differ- 
ent parties,  where  the  union  is  in  no  sense  due  to  the 
plaintiff,  the  Federal  court,  it  seems,  has  no  jurisdiction. 8 
Where  two  suits,  involving  to  a  great  extent  the  subject- 
matter,  are  brought  respectively  in  a  State  and  a  Federal 
court,  that  court  whose  jirocess  is  first  served  obtains 
jurisdiction  of  all  questions  which  legitimately  flow  out 
of  the  subject-matter  of  the  case.9  Between  courts  of 
concurrent  jurisdiction,  the  court  first  acquiring  jurisdic- 
tion will  retain  it,  and  will  not  be  interfered  with  by 
another  court. ^'^  Such  court  may  retain  the  case  until 
comi^lete  relief  is  afforded. n  So  where,  under  a  State  act, 
proceedings  for  a  dissolution  and  administration  of  the 
property  of  a  corporation  are  commenced,  they  must  be 
finally  disposed  of  in  the  State  tribunal,  though  a  valid 
and  subsisting  judgment  was  obtained  in  the  Federal 
court.i'^  State  and  Federal  courts  cannot  lawfully  interfere 
with  each  other  where  each  is  acting  within  legal  limits.i^ 


§  1  r  JURISDICTION.  76 

The  court  which  first  acquires  possession  of  the  fund  or 
subject  of  the  action  has  exclusive  jurisdiction,  i*  A  Fed- 
eral court  will  neither  interfere  with  property  in  the 
lawful  custody  of  a  State  court,  nor  tolerate  interference 
by  a  State  court  with  property  in  its  custody;!^  nor  can 
a  State  court  reach  funds  which  have  been  made  by  an 
officer  of  a  Federal  court  on  execution ;  ^6  "but  that  prop- 
erty is  being  administered  on  in  a  State  court  is  no  bar 
to  the  proceedings  in  the  circuit  court. i"  The  rule  of 
comity  towards  State  courts  should  not  operate  to  de- 
prive tlie  Federal  court  of  its  rightful  jurisdiction; is  but 
to  take  advantage  of  the  rule  in  favor  of  a  State  court  of 
concurrent  jurisdiction,  the  point  must  be  seasonably 
urged;  after  trial  on  the  merits  it  is  too  late. i^  The  rule 
of  comity  applies  to  criminal  as  well  as  to  civil  cases;  so 
where  the  marshal  took  a  prisoner  charged  with  the  same 
offense  from  the  custody  of  the  State  officer,  the  Federal 
court  sustained  the  indictment,  and  remanded  the  pris- 
oner to  the  State  authorities.^^  As  where,  under  an  act 
of  Congress  admitting  a  State  or  organizing  a  Territory, 
and  providing  for  an  Indian  reserve ;  21  but  the  Federal 
court  has  no  jurisdiction  over  an  indictment  of  a  white 
man  for  the  murder  of  a  white  man  on  such  a  reserve 
within  the  limits  of  a  State. 22  With  respect  to  land 
owned  by  the  United  States  within  the  limits  of  a  State, 
over  which  the  State  has  not  parted  with  its  jurisdiction, 
the  United  States  stands  in  the  relation  of  a  proprietor 
only,  and  State  officers  have  the  same  right  to  enter  thereon 
and  seize  personal  property  for  non-payment  of  taxes,  if 
the  right  is  exercised  so  as  not  to  interfere  with  the  oper- 
ations of  the  General  Goverument.23  The  circuit  courts 
have  not  exclusive  jurisdiction  of  suits  in  liersonam  grow- 
ing out  of  collisions  between  vessels  navigating  the 
Ohio.-^  So  they  have  onh'  concurrent  jurisdiction  with 
the  district  courts  in  suits  in  equity  by  the  assignee  of  a 
bankrupt  in  one  State  against  the  citizen  of  another 
State;  25  and  they  have  power  to  appoint  a  guardian  for 


77  JURISDICTION.  §  2 

an  infant  only  when  property  of  the  infant  is  involved  in 
a  legal  proceeding  before  them,  in  order  to  preserve  it 
from  destruction  or  waste.-^ 

1  Dennick  f.  Eailroad  Co.  103  U.  S.  11.    See  Bridges  v.  Sheldon,  7 
Fed.  Kep.  41. 

2  Holmes  v.  O.  &  C.  R.  Co.  5  Fed.  Kep.  75. 

3  Harris  v.  Hess,  10  Fed.  Rep.  263. 

4  Dvvight  V.  Ceutr.  Vt.  K.  Co.  9  Fed.  Rep.  785. 

5  Hubbard  v.  Bellew,  3  Fed.  Rep.  447. 

6  Marchand  v.  Frellson,  4  Morr.  Trans.  431. 

7  Cunningbam  r.  Co.  of  Rales,  1  Fed.  Rep.  274;  Payne  r.  Hook,  7 
Wall.  426. 

8  Iowa  Home  Co.  v.  Des  Moines  X.  &  R.  Co.  8  Fed.  Rep.  97. 

9  Union  Mut.  L.  Ins.  Co.  v.  University  of  Chicago,  6  Fed.  Rep.  443. 

10  Davis  V.  Life  Asso.  of  America,  11  Fed.  Rep.  781. 

11  Wardr.  Todd.  103  U.S.  327. 

12  Levi  r.  Columbia  L.  Ins.  Co.  1  Fed.  Rep.  206. 

13  Walkeri'.  Flint,  7  Fed.  Rep.  435.  The  circuit  court  has  no  au- 
thority to  control  the  proceedings  of  a  State  court,  or  to  stay  the 
prosecution  therein:  Harrison  Wire  Co.  v.  Wheeler,  11  Fed.  Rep.  206, 
Coffin  V.  Haggin,  11  Fed.  Rep.  219. 

14  Burt  V.  Keyes,  1  Flippen,  61. 

15  Walker  v.  Flint,  7  Fed.  Rep.  435. 

16  Alabama  Gold  L.  Ins.  Co.  v.  Girardy,  9  Fed.  Rep.  142. 

17  Griswold  v.  Cent.  Vt.  R.  Co.  9  Fed.  Rep.  797. 

18  Andrews  v.  Smith,  5  Fed.  Rep.  833. 

19  Gilman  r.  Perkins,  7  Fed.  Rep.  887. 

20  U.  S.  V.  WeUs,  11  Am.  L.  Reg.  424;  Fox  v.  Ohio.  5  How.  410;  Jett'S 
Case.  18  Gratt.  942 ;  U.  S.  v.  Van  Fossen,  1  Dill.  411.  See  U.  S.  v.  French, 
1  Gall.  1 ;  Ex  parte  Forbes,  1  Dill.  363. 

21  Langford  v.  Monteith,  102  U.  S.  155. 

22  U.  S.  V.  McBralney,  3  Morr.  Trans.  706. 

23  State  Tax  Laws,  14  Op.  Att.-Gen.  199. 

24  Schoonmaker  v.  Gilmore.  102  U.  S.  118. 

25  Scovill  V.  Shaw,  4  Cliff.  549;  Gindrat  v.  Dane,  4  Cliff.  260. 

26  Insurance  Co.  v.  Bangs,  2  Morr.  Trans.  791. 

§  2.  Liens— appearance  of  parties.— 27ia«  when  in 
any  suit  commenced  in  any  circuit  court  of  the  United 
States  to  enforce  any  legal  or  equitable  lien  upon  or  claim 
to,  or  to  remove  any  incumbrance  or  lien  or  cloud  upon,  the 
title  to  real  or  personal  property  within  the  district  where 
such  suit  is  brought,  one  or  more  of  the  defendants  therein 
shall  not  be  an  inhabitant  of  or  found  within  the  said  dis- 


§   2  JURISDICTION.  78 

trict,  or  shall  not  voluntarily  appear  thereto,  it  shall  he  laiv- 
ful  for  the  court  to  make  an  order  directing  such  absent 
defendant  or  defendants  to  appear, plead,  answer,  or  demur, 
by  a  day  certain,  to  be  designated,  ichich  order  shall  be  served 
on  such  absent  defendant  or  defendants,  if  practicable, 
wherever  found,  and  also  upon  the  person  or  persons  in  pos- 
session or  charge  of  said  property,  if  any  there  be. 

Or  v:here  such  personal  service  upon  such  absent  defendant 
or  defendants  is  not  pi-act icable,  such  order  shall  he  published 
in  such  manner  as  the  court  may  direct,  not  less  than  once 
a  week  for  six  consecutive  loeeks. 

And  in  case  such  absent  defendant  shall  not  appear,  plead, 
answer,  or  demur  ivithin  the  time  so  limited,  or  icithin  some 
further  time,  to  be  allowed  by  the  court,  in  its  discretion, 
and  upon  proof  of  the  service  or  publication  of  said  order, 
and  of  the  performance  of  the  directions  contained  in  the 
same,  it  shall  be  lawful  for  thecourt  to  entertain  jurisdiction, 
and  proceed  to  the.  hearing  and  adjudication  of  such  suit 
in  the  same  manner  as  if  such  absent  defendant  had  been 
served  loith  process  icithin  the  said  district. 

Bui  said  adjudication  shall,  as  regards  said  absent  de- 
fendant or  defendants  without  appjearance,  affect  only  the 
property  v'hich  shall  have  been  the  S'ubject  of  the  suit  and  un- 
der the  jurisdiction  of  the  court  therein  within  such  dis- 
trict. 

And  ichen  a  part  of  the  said  real  or  personal  property 
agoAnst  which  such  proceeding  shall  be  taken  shall  be  icith- 
in another  district,  but  icithin  the  same  State,  said  suit  may 
be  brought  in  either  district  in  said  State. 

Provided,  however,  that  any  defendant  or  defendants,  not 
actually  personally  notified  as  above  pj^ovided,  may,  at  any 
time  within  one  year  after  final  judgment  in  any  suit  men- 
tioned in  this  section,  enter  his  appearance  in  said  suit  in 
said  circuit  court,  and  thereupon  the  said  court  shall  make 
an  order  setting  aside  the  judgment  therein,  and  permitting 
said  defendant  or  defendants  to  plead  therein  on  jyayment  by 
him  or  them  of  such  costs  as  the  court  shall  deem  just ;  and 


79  JURISDICTION.  §  2  a 

thereupon  said  suit  shall  he  proceeded  with  to  final  judr/ment, 
according  to  lav). 

Act  of  March  3, 1875,  §  8  (Supp.  Kev.  Stats.  173). 

§  2  a.  Jurisdiction,  ho-w  acquired.  — A  Federal 
court  acquires  jurisdiction  over  parties  only  by  a  service 
of  process,  or  hy  their  voluntary  appearance, i  and  only 
by  service  of  process  within  the  district, ^  and  not  then  if 
he  is  but  temporarily  within  tlie  district. 3  A  person  who 
comes  within  the  district  merely  for  the  purpose  of 
attending  a  trial  in  a  State  court  cannot  be  served  with 
process  issuing  out  of  a  United  States  court  ;"*  and  if 
served  with  summons  while  attending  the  trial  of  a  cause 
in  the  circuit  court  as  a  party,  the  service  will  be  set 
aside.5  Where  defendant,  not  an  inhabitant  of  the 
district,  is  inveigled  or  enticed  into  the  district  by  false 
representations  or  deceptive  contrivances,  service  of 
process  on  him  within  the  district  is  illegal. ^  If  anon- 
resident  comes  into  the  district  for  the  purpose  of  plead- 
ing to  an  indictment  and  giving  bail,  he  cannot  be  sued 
before  he  has  a  reasonable  time  to  depart."  If  defendant 
is  a  non-resident  of  the  district,  the  record  must  show 
with  certainty  that  process  was  served  upon  him  within 
the  district.8  "SVhere  one  joint  defendant  removed  the 
suit,  plaintiff  is  entitled  to  process  against  the  defendant 
who  has  not  served  with  process  in  the  State  court  at 
the  time  the  cause  was  removed.^  If  necessary  parties 
are  non-residents,  their  appearance  may  be  secured  under 
the  provision  of  this  section,  where  there  is  jiroperty 
within  the  jurisdiction  upon  which  a  lien  is  claimed. ^"^  A 
marshal's  return  of  "not  found"  is  not  a  condition  prece- 
dent to  the  making  of  the  order  contemplated  by  this 
section;  such  order  may  be  made  on  affidavit  alone. ^i 
The  circuit  court  cannot  enforce  the  lien  until  it  has  ju- 
risdiction of  the  person. i-  This  provision  is  not  a  denial 
of  jurisdiction,  but  the  grant  of  a  privilege  to  defendant 
not  to  be  sued  out  of  the  State  where  he  resides  unless 


§  2  b  JURISDICTION.  80 

served  with  process,  or  waives  his  privilege  by  voluntary 
appearance. 13 

1  Herndou  v.  Ridgway,  17  How.  424;  Stevens  v.  Kicliardson  9  Fed. 
Kep.  191. 

2  Allen  v.  Blunt,  1  Blatchf.  480;  Union  Sugar  Refi.  v.  Mathiesson, 
2  Cliff.  304. 

3  Smith  V.  Tattle,  5  Biss.  159. 

4  Juneau  Bank  r.  McSpeden,  5  Biss.  64;  Parker  v.  Hotchkiss,  1 
Wall.  Jr.  269;  Brooks  v.  Farwell,  4  Fed.  Kep.  166. 

5  Parker  v.  Hotchkiss,  1  Wall.  Jr.  269;  Contra:  Blight ».  Fisher, 
Peters,  C.  C.  41. 

6  Steiger  v.  Bonn,  4  Fed.  Eep.  17;  Union  Sugar  Refi.r.  Mathiesson, 
2  Cliff.  304. 

7  U.  S.  V.  Bridgman,  8  Am.  L.  Rec.  541. 

8  Allen  v.  Blunt,  1  Blatchf.  480;  Vore  v.  Fowler,  2  Bond,  294;  Mc- 
Closkey  v.  Cobb,  2  Bond,  16;  Thayer  v.  Wales,  5  Fish.  44S. 

9  Fallis  r.  McArthur,  1  Bond,  100.  Contra:  Field  i;.  Lownsdale, 
Deady,  228.  See  Fisk  v.  Union  Pac.  R.  R.  Co.  8  Blatchf.  243;  6  Blatchf. 
362. 

10  Mercantile  Trans.  Co.  v.  Portland  <fc  O.  R.  R.  Co.  10  Fed.  Eep.  604, 

11  Forsyth  v.  Pierson,  9  Fed.  Rep.  801;  WooLridge  v.  McKenna,  8 
Fed.  Rep.  650. 

12  Insurance  Co.  c.  Bangs,  103  U.  S.  435. 

13  Harrison  v.  Rowan,  Poters  C.  C.  489;  Segee  v.  Thomas,  3  Blatchf. 
11. 

§  2  b.  Process  by  attachment.— The  circuit  court 
has  no  jurisdiction  in  attachment  suits  against  a  non- 
resident without  the  district.!  Process  of  foreign  attach- 
ment cannot  be  properly  issued  by  the  circuit  court  in 
cases  where  defendant  is  domiciled  abroad,  or  not  found 
within  the  district,  so  that  it  can  be  served  upon  him,2 
and  this  applies  to  corporations. 3  Process  of  attachment 
on  the  effects  of  a  iDerson  not  an  inhabitant  cannot  be 
served;-^  but  if  served  not  only  on  the  property  but  on 
the  defendant,  jurisdiction  attaches."  An  assignee 
appointed  by  a  bankrupt  court  of  another  district  is 
within  the  rule,  although  there  is  i)roperty  within  the 
district.6  Where  a  citizen  of  the  United  States  is  a 
resident  in  a  foreign  country,  the  circuit  court  has  no 
jurisdiction  over  a  suit  brought  by  an  alien,  although  he 
has  i)roperty  within  the  district  which  may  be  attached.'^  . 

1  Hollingsworth  v.  Adams,  2  Dall.  396 ;  Toland  v.  Spragne,  12  Peters, 
300;  Chaffee  v.  Hay  ward.  20  How.  208;  Day  v.  Newark  Mauuf'g  Co.  I 


81  JURISDICTION.  §  2  C 

Blatchf.  62S;  Saddler  v.  Hudson,  2  Curt.  6 ;  Mauldin  v.  Carll,  3  Hughes, 
249;  Picquet  v.  Swan,  5  Masou,  35;  Richmond  v.  Dreyfous,  1  Sum.  131. 

2  Toland  v.  Sprague,  12  Peters,  300;  Anderson  v.  Shaffer,  10  Fed. 
Rep.  2ttB. 

3  Myers  r.  Dorr,  13  Blatchf.  22. 

4  Pollard  v.  Dwight,  4  Cranch,  424. 

5  North  V.  McDonald,  1  Biss.  57;  Anderson  v.  Schaffer,  10  Fed. 
Eep  266. 

6  Shainwald  v.  Lewis,  5  Fed.  Eep.  510. 

7  Picquet  v.  Swan,  5  Mason,  35. 

§  2  c.     On  corporations.— A  corporation  can  have 
no  existence  beyond  the  limits  of  the  State  in  which  it  is 
created;    hence,   service   of    process  ui)on  its  officers  in 
another  State  will  not  confer  jurisdiction  upon  a  circuit 
court  in  that  State  over  the  corporation.!    As  a  corpora- 
tion cannot  be  made  a  party  to  a  civil  suit  by  original 
process  in  any  other  district  than  the  State  wherein  it 
was  created,2  so  a  national  bank  cannot  be  sued  out  of 
the  district  in  which  it  is  located;  ^  but  a  trading  corpora- 
tion may  be  sued  in  any  district  in  which  it  conducts  its 
business, 4  and  a  foreign  corporation  may  be  sued  in  a 
district  other  than  that  of  which  it  is  a  resident,  if  it  has 
a  duly  authorized  resident  agent  qualified  to  acknowl- 
edge service  of  process;  ^  or  if  it  consents  that  process 
may  be  served  on  its  agent  in  such  State,  jurisdiction 
attaches. 6    A  foreign  corporation  doing  business  within 
the  State  is  liable  to  suit  by  service  of  process  on  an 
agent,'^  although  there  is  no  State  law  requiring  it  to  ap- 
point an  agent  to  accept  service  of  process. s    A  State  law 
!  providing  for  service  of  summons  on  the  agent  or  officers 
!  of  a  foreign  express  company  does  not  apply  to  cases 
arising  outside  the  State.^    A  service  of  process  under  the 
1  provisions  of  a  law  of  the  State  on  a  non-resident  corpor- 
j  ation  will  not  authorize  a  personal    judgment   against 
j  such  corporation.io 

I  1  Northern  Ind.  Pt.  Co.  v.  Michigan  Cent.  R.  Co.  15  How.  233;  Day 
r.  Newark  Manuf'g  Co.  1  Blatchf.  628;  Decker  v.  New  York  B.  &  P.  Co. 
11  Blatchf.  76;  Myers  v.  Dorr,  13  Blatchf.  22. 

2    Myers  v.  Dorr,  13  Blatchf.  23. 


§  2  d  JUKISDICTIOK.  82 

3  Main  v.  Second  Nat.  Bank,  6  Biss.  26, 

4  Hayclen  v.  Aadro.scoj,'gm  Mills,  1  Fed.  Rep.  93. 

5  Runkle.  v.  Lamar  Ins.  Co.  2  Fed.  Rep.  9;  Moch  v.  Va.  Fire  & 
M.  Ins.  Co.  10  Fed.  Kep.  696. 

6  Ex  parte  Schollenberger,  96  U.  S.  369;  Knott  v.  Southern  L.  Ins. 
Co.  2  Woods,  479;  Ebrman  v.  Teutonia  Ins.  Co.  1  Fed.  Rep.  471:  Kun- 
kle  V.  Lamar  Ins.  Co.  2  Fed.  Rep.  9;  Fonda  v.  British  Am.  Ins.  Co.  10 
Ch.  L.  N.  309;  Albright  v.  Empire  Trans.  Co.  18  Alb.  L.  J.  313. 
Contra:  Pomeroy  t;.  New  York  dc  N.  H.  R.  Co.  4  Blatchf.  120;  South- 
ern &  A.  T.  R.  Co.  V.  New  Orleans,  M.  &  T.  R.  Co.  2  Cent.  Law  J.  83; 
Stillwell  V.  Empire  F.  Ins.  Co.  4  Cent.  Law  J.  463. 

7  Albright  r.  Empire  Trans.  Co.  18  Alb.  L.  J.  313.  See  Browel  v. 
T.  &  B.  R.  Co.  3  Fed.  Hep.  761 ;  Moch  v.  Va.  Fire  <k  M.  Ins.  Co.  10  Fed. 
Kep.  696. 

8  Wilson  Pack.  Co.  v.  Hunter,  11  Ch.  L.  N.  207. 

9  Grover  v.  Amer.  Express  Co.  11  Fed.  Rep. 

10  Pennoyer  v.  Neff,  95  U.  S.  714;  Parrott  r.  Alabama  G.  L.  Ins.  Co. 
5  Fed.  Rep.  391. 

§  2  d.  Waiver  of  irregularities.  A  Federal  court; 
has  no  autlioritj-  to  issue  process  to  another  district.i  So 
the  process  of  a  circuit  court  cannot  he  served  without 
the  district  in  wliich  it  is  established  except  by  sj^ecial 
authority  of  law;  -  and  in  proceedings  for  relief  against  an 
interfering  patent  under  §  4918,  Eev.  Stats.,  no  provision 
is  made  for  service  of  notice  on  parties  outside  of  the  dis- 
trict.3  No  judgment  can  be  rendered  against  a  defendant 
who  has  not  been  served  witli  process  in  the  manner 
pointed  out,  unless  the  defendant  waives  the  necessary 
process  by  entering  his  appearance.'*  A  party  defendant 
may  plead  service  of  process  on  him  out  of  the  district  by 
plea  in  abatement  of  the  suit.^  Where  a  defendant  ap- 
pears without  taking  exceptions,  it  is  an  admission  of  the 
regularity  of  the  service  ;*5  but  if  he  appears  and  answers 
the  bill  he  cannot,  on  tlie  hearing,  object  that  the  bill  con- 
tained a  prayer  for  process,  or  that  he  was  not  served.^ 
And  if  he  appears  and  pleads  on  the  merits,  it  is  a  waiver 
of  irregularitj'.s  ^  citizen  of  New  Hampshire  sued  a 
Connecticut  corporation  in  New  Hami^shire,  the  corpora- 
tion liaving  entered  a  general  appearance  tlie  objection  to 
want  of  service  was  deemed  waived.^ 

1  Herndon  v.  Ridgway,  17  How.  424. 

2  Toland  v.  Sprague,  12  Peters,  300;  Ex  parte  Graham,  3  Wash.  C. 
C.  456;  Wiisou  V.  Graham,  4  Wash.  C.  C.  53. 


83  JURISDICTION.  §  2  e 

3  Liggett  V.  MiUer,  1  Fed.  Rep.  203. 

4  Levy  v.  Fitzpatrick,  15  Peters,  167. 

5  Van  Antwerp  v.  Hulburd,  7  Blatclif.  426. 

6  Gracie  v.  Palmer,  8  Wheat.  699. 

7  Segee  v.  Thomas,  3  Blatchf.  11. 

8  Tolandr.  Spragne,  12  Peters,  300;  Pollard  v.  Dwight,  4  Crancb, 
421 ;  Irvine  v.  Lowry,  14  Peters,  293. 

9  Flanders  v.  .^tna  Ins.  Co.  3  Mason,  158. 

§  2  e.  A  personal  privilege,  and  may  be  -waived. 

—This  section  is  not  a  denial  of  jurisdiction,  but  tlie  grant 
of  a  privilege  to  defendant  not  to  be  sued  out  of  the 
State  where  he  resides,  unless  served  with  process  in  the 
State  where  suit  is  brought  ;i  and  under  its  provisions 
the  privilege  granted  to  him  may  be  waived,^  as  by  a  vol- 
untary appearance ;  ^  and  his  appearance  without  process 
is  a  waiver  of  the  privilege  to  object  to  the  non-service  of 
process.^  So  appearing  and  moving  to  dismiss  the  bill 
for  want  of  equity,^  or  an  appearance  unaccompanied  by 
a  plea  claiming  the  privilege,  is  a  waiver  of  it. 6  For  an 
appearance  to  confer  jurisdiction,  the  party  must  be  a 
party  to  the  record."  If  a  party  is  a  non-resident,  he  may 
appea>  in  the  suit  and  plead  his  personal  privilege,^  and 
such  an  appearance  is  not  a  waiver; 9  nor  is  it  a  waiver 
to  appear  and  plead  to  the  jurisdiction  by  an  attor- 
ney.io  \Yhere  a  bill  was  filed  in  the  southern  district  of 
Mississippi  against  four  defendants,  two  of  whom  ap- 
peared for  the  purpose  of  moving  to  dismiss  the  bill,  and 
the  other  two  declined  to  appear,  and  process  was  not 
served  on  them,  the  court  had  no  alternative  but  to  dismiss 
the  bill,  they  being  necessary  parties. ii  If  parties  are  resi- 
dents of  another  State,  they  may  be  summoned  where 
there  is  property  within  the  jurisdiction  upon  which  a 
lieu  is  claimed. 12 

1  Harrison  v.  Rowan,  Peters  C.  C.  489. 

2  Flanders  v.  .Iltna  Ins.  Co.  3  Mason,  158. 

3  Harrison  v.  Rowan,  Peters  C.  C.  489. 

4  Gracie  V.  Palmer,  8  Wheat.  699;  Segee  v.  Thomas,  3  Blatchf.  11; 
Kelsey  v.  Pennsylvania  K.  Co.  14  Blatchf.  89;  McCloskey  f.  Cobb,  2 
Bond,  16;  Flanders  v.  ^tna  Ins.  Co.  3  Mason,  158;  Harrison  v.  Rowan, 
Peters  C.  C.  489;  Clarke  v.  Navigation  Co.  1  Story,  531. 


§  3  JURISDICTION,  84 

5  Jones  V.  Andrews,  10  Wall.  327. 

6  Harrison  v.  Rowan,  Peters  C.  C.  489.  See  Flanders  v.  ^tua  Ins. 
Co.  3  Mason,  15S. 

7  Kentucky  S.  M.  Co.  v.  Day,  2  Sawy.  468. 

8  Teese  v.  Phelps,  1  McAU.  17. 

9  Harrison  v.  Eowan,  Peters  C.  C.  489. 

10  Commercial  Bank  v.  Slocomb.  14  Peters,  60;  Thayer  ».  Wales,  5 
Fish.  Pat.  Cas.  448;  Decker  v.  New  York  B.  &  P.  Co.  11  BlatcM.  76. 

11  Herndon  v.  Pddgway,  17  How.  424. 

12  Mercantile  T.  Co.  v.  Portland  &  O.  R,  Co.  10  Fed.  Rep.  604. 

§  3.  Revival  on  death  of  party.— That  whenever 
either  party  to  a  final  judgment  or  decree,  lohich  has  been  or 
shall  be  rendered  in  any  circuit  court,  has  died  or  shall  die 
before  the  time  allowed  for  taking  an  appeal  or  bringing  a  writ 
of  error  has  expired,  it  shall  not  be  necessary  to  revive  the  suit 
by  any  formal  proceedings  aforesaid. 

The  representative  of  such  deceased  party  may  file  in  the 
office  of  the  clerk  of  such  circuit  court  a  duly  certified  copy 
of  his  appointment,  and  thereupon  may  enter  an  appeal  or 
bring  writ  of  error,  as  the  party  he  represents  might  have 
done. 

If  the  party  in  whose  favor  such  judgment  or  decree  has 
rendered  has  died  before  appeal  taken  or  writ  of  error 
brought,  notice  to  his  representatives  shall  be  given  from  the 
supreme  court,  as  provided  in  case  of  the  death  of  a  party 
after  appeal  taken  or  writ  of  error  brought. 

Act  of  March  3, 1875,  §  9  (Supp.  Rev.  Stats.  173). 


EEMOVAL  OF   CAUSES. 


§  4.    Removal   of   cause— amount  in   dispute.— 

Any  suit  commenced  in  any  State  court,  wherein  the  amount 
in  dispute,  exclusive  of  costs,  exceeds  the  sum.  or  value  of  Jive 
hundred  dollars,  to  be  made  to  appear  to  the  satisfaction  of 
said  court,  may  he  removed  for  trial  into  the  circuit  court 
for  the  district  where  such  suit  is  pending,  next  to  he  held 
after  the  filing  of  the  petition  for  such  removal  hereinafter 
mentioned,  in  the  cases  and  in  the  manner  stated  in  this  sec- 
tion. 

Rev.  Stats.  §  639  (1  U.  S.  Stats.  79;  14  U.  S.  Stats.  306;  14  U.  S.  Stats. 
558.) 

§  4  a.    Constitutional    provisions.— Congress    may 

provide  for  the  removal  of  causes  from  State  to  Federal 
courts,!  authorize  its  removal  from  its  then  condition,"^ 
prescribe  the  time  in  which  to  exercise  the  right,^  and 
confer  original  jurisdiction  by  such  removal.-*  This  power, 
given  by  implication,  is  the  indirect  means  by  which  Fed- 
eral courts  acquire  jurisdiction. 5  It  may  give  jurisdiction 
in  cases  arising  under  the  Constitution  or  laws  of  the 
United  States,  althougli  such  cases  may  involve  other 
questions  of  law  or  fact;  6  when  such  a  question  forms  an 
ingredient  of  the  original  cause;'  and  no  State  can  take 
away  the  privilege  conferred  upon  citizens  of  other  States 
to  sue  in  the  I'ederal  courts ;  §  nor  can  jDarties  by  agree- 
ment oust  the  jurisdiction  of  the  Federal  courts. 9  A 
statute  requiring  an  agreement  from  a  foreign  corporation 
not  to  remove  a  cause  is  voidji''  but  a  conditional  license 
Desty  Removal.— 8. 


§  4  b  AMOUNT  IX  DISPUTE.  8G 

to  transact  business  in  a  State  may  be  revoked  if  such  re- 
moval is  made.n  Under  the  Constitution  of  the  United 
States,  suits  may  be  made  removable  after  as  well  as  be- 
fore judgment. 1- 

1  Martin  v.  Hunter,  1  Wheat.  304;  Mayor  v.  Cooper,  6  "Wall.  247; 
Railroad  Co.  v.  AVliittou,  13  Wall.  270;  Murray  v.  Patrie,  5  BlatcM.  343; 
Fiskt).  N.  P.  K.  R.  Co.  6  Blatchf.  362;  Johnson  v.  Monell,  Woolw.  390; 
McCormick  v.  Humphrey,  27  Ind.  144;  Todi'.  Fairfield,  15  Ohio  St.  377; 
Hodgson  V.  Mill  ward,  3  Grant  Cas.  412;  Kulp  v.  Eicketts,  3  Grant  Cas. 
420;  Greely  r.  Towuseud,25  Cal.  604. 

2  Andrews  v.  Garrett,  1  Flippen,  445;  Ins.  Co.  v.  Dunn,  19  Wall.  214; 
Gaines  v.  Fueutes,  92  U.  S.  10;  «.  C.  3  Cent.  L.  J.  371. 

3  Clark  v.  Dick,  1  Dill.  8;  Gaines  v.  Fuentes,  92  U.  S.  10. 

4  Murray  v.  Patrie,  5  Biatchf .  343. 

5  Railroad  v.  Whitton,  13  Wall.  270;  Martin  v.  Hunter,  1  Wheat.  304. 

6  Tennessee  v.  Davis,  100  U.  S.  257;  S.  C.  10  Cent.  L.  J.  251.. 

7  N.  O.  M.  &  T.  E.  R.  Co.  v.  Mississippi,  102  U.  S.  351. 

§  4  b.  Amount  in  controversy.— If  the  value  is 
only  five  hundred  dollars,  the  cause  cannot  be  removed.! 
The  right  depends  on  facts  existing  when  suit  was  insti- 
tuted ;2  yet,  if  defendant  makes  the  amount  more  when 
he  files  the  petition,  it  may  be  removed.^  The  affidavit  of 
the  petitioner  is  not  conclusive. ^  An  action  for  damages 
may  be  removed  although  the  damages  are  uncertain.^ 
The  sum  claimed  as  damages  in  the  declaration  is  the 
amount  in  disi)ute,  until  otherwise  shown ;  6  but  the  pre- 
sumption is  not  conclusive; "  so  in  assumpsit. ^  In  actions 
on  tort  the  damages  laid  constitute  the  amount.^  Where 
the  practice  is  not  to  file  the  declaration  until  after  the 
return  of  the  writ,  the  ad  damnum  in  the  writ  is  the  prim,a 
facie  sum  claimed, lo  unless  the  declaration  is  inserted  in 
the  writ.ii  If  the  declaration  and  the  ad  damnum  vary, 
the  State  court  may  institute  an  inquiry  as  to  the  true 
amount.i2  On  attachment,  it  must  appear  that  the  suit 
presents  a  claim  exceeding  five  hundred  dollars  dam- 
ages.i3  So  as  to  the  value  of  a  right  which  a  corporation 
is  restrained  from  entering  upon.i*  "In  dispute"  refers 
to  the  matter  in  dispute,  though  the  claim  be  incapable  of 
proof,  or  be  only  in  part  well  founded.is    The  amount 


87  AMOUNT  IN  DISPUTE.  §  4  C 

must  be  affirmatively  sliown.i^  It  is  sufficient  that  it  ex- 
ceeds five  hundred  dollars  at  the  time  the  removal  is 
applied  for,  and  interest  may  be  regarded  in  determining 
it.  17  "Where  the  right  of  removal  has  become  complete, 
it  cannot  be  defeated  by  release,  amendment,  or  de- 
claring for  a  less  sum; is  nor  "will  release  of  part  of  a 
demand  oust  jurisdiction  of  the  Federal  court;  19  or 
reduction  of  amount  of  claim  after  removal  deprive 
defendant  of  his  rights.-o  If  action  is  brought  for  less 
than,  and  the  answer  pleads  counter-claim  exceeding,  five 
hundred  dollars,  defendant  is  entitled  to  remove  the 
whole  suit,2i  The  right  of  creditors  to  come  in  and  have 
claims  allowed  is  a  mere  incident  over  which  the  court 
will  necessarily  exercise  jurisdiction.^^  Costs  are  not 
recoverable  when  the  amount  is  less  than  five  hundred 
dollars.23 

1  Ladd  V.  Tudor,  3  Wood.  &  M.  325;  West.  U.  Tel.  Co.  v.  Levi,  47 
Ind.  552. 

2  Roberts  v.  Nelson,  8  Blatchf .  74. 

3  McGinnity  v.  White,  3  Dill.  350. 

4  Rush  V.  Cobbett,  2  Yeates,  275. 

5  Muns  V.  Dupont,  2  Wash.  C.  C.  463.  Contra:  Rush  v.  Cobbett,  2 
Yeates,  275. 

6  Gordon  v.  Longest,  16  Peters,  97;  Kanouse  v.  Martin,  15  How.  198; 
Desbrow  V.  Driggs,  8  Abb.  Pr.  305,  note.  Contra:  Rush  v.  Cobbeit,  2 
Yeates,  275. 

7  Ladd  v.  Tudor,  3  Wood.  &  M.  325;  People  v.  The  Judges,  2  Denio, 
197;  Culver  v.  Crawford  Co.  4  Dill.  239. 

8  People  V.  The  Judges,  2  Denio,  197. 

9  Hulsecamp  v.  Teel,  2  Dall.  358;  Gordon  v.  Longest,  16  Peters,  97; 
Western  U.  Tel.  Co.  v.  Levi,  47  Ind.  552. 

10  Muns  17.  Dupont,  2  Wash.  C.  C.  463;  Ladd  v.  Tudor,  3  Wood.  &  M. 
325. 

11  Ladd  V.  Tudor,  3  Wood.  &  M.  325. 

12  Ladd  v.  Tudor,  3  Wood.  &  M.  325. 

13  Keith  v.  Levi,  2  Fed.  Rep.  743. 

14  Hatch  V.  Chicago,  R.  L  &  P.  R.  Pv.  Co.  6  Blatchf.  165. 

15  Kanouse  v.  Martin,  15  How.  198. 

16  Keith  v.  Levi,  2  Fed.  Rep.  743. 

17  McGinnitv V.White, 3  Dill. 350;  Bank  of  U.  S.r. Daniel,  12  Peters, 
32;  Merrill  v.  Petty,  16  Wall.  338;  Clarkson  v.  Manson,  4  Fed.  Rep. 
227. 


§  4  C  AMOUNT  IX  DISPUTE.  88 

18  Kanoiise  v.  Martin,  15  How.  198;  Green  v.  Custard,  23  How.  484; 
Roberts  v.  Nelson,  8  Blatchf.  74;  Wright  v.  Wells,  1  Peters  C.  C.  22u. 
C'07itra:  Maine  v.  Oilman,  10  Fed.  Rep.  214. 

19  Wright  V.  Wells,  1  Peters,  220;  Gordon  v.  Longest,  16  Peters,  97; 
Roberts  v.  Nelson,  8  Blatchf.  75. 

20  Roberts  v.  Nelson,  8  Blatchf.  74;  Zinckersen  v.  Hufschmidt,  I 
Cent.  L.  J.  144. 

21  Clarkson  v.  Manson,  4  Fed.  Rep.  227 ;  See  Aurora  v.  West,  6  Wall. 
139;  S.  C.  25  Ind.  148.  Contra:  Falls  Wire  ]VIauuf.  Co.  v.  Broderick,  6 
Fed.  Rep.  654. 

22  N.  Y.  Silk  Manuf.  Co.  v.  Second  Nat.  Bank,  10  Fed.  Rep.  204. 

23  Brooks  v.  Phoenix  Ins.  Co.  16  Blatchf.  182. 

§  4c.  Right  of  removal.— The  right  to  a  removal  of 

the  cause  is  a  right  conferred  directly  by  Congress,  and 
does  not  depend  on  the  action  of  the  State  court  ;i  which 
can  neither  confer  it  nor  take  it  away.-  If  the  right  has 
once  become  perfect,  it  cannot  be  taken  away  by  subse- 
quent amendment,^  either  in  the  State  or  Federal  court, 
by  release  of  part  of  the  claim,*  or  otherwise.^  A  party 
loses  none  of  his  rights  to  insist  upon  a  removal  of  the 
cause  by  his  voluntary  appearance  ;6  if  he  appears  and 
obtains  time  to  answer,  and  gives  notice  of  a  motion  to 
dismiss  a  temporary  injunction,  it  is  not  a  waiver  of  the 
right. ■!■  A  party  brought  into  a  State  court  by  an  order  to 
interplead,  may,  on  motion  of  the  original  defendant,  if 
otherwise  qualified,  remove  the  cause. §  A  party  is  not 
precluded  by  the  acts  of  an  attorney  appointed  for  him  by 
the  court  in  his  absence. ^  A  party  failing  to  obtain  a  re- 
moval loses  none  of  his  rights  by  contesting  the  suit  on 
its  merits.  10  Such  contesting  is  not  a  waiver  of  his 
rights. 11  The  right  to  a  removal  may  be  waived,!^  as  by 
agreement,  by  direct  consent,  or  by  non-exercise  of  the 
right;  13  as  by  consenting  to  a  reference, !■*  or  by  stipula- 
tion, or  any  conduct  equivalent  to  a  waiver.i^ 

1  Fisk  V.  U.  P.  R.  R.  Co.  6  Blatchf.  362. 

2  Clippinger  v.  Mo.  Yal.  L.  Ins.  Co.  22  Int.  Rev.  Rec.  47;  Hatch  v. 
Chicago,  R.  i.  &  P.  R.  R.  Co.  6  Blatchf.  105. 

3  Kanouse  I'.  Martin,  15  How,  198;  S.  C.  1  Blatchf.  149;  Akerly  v. 
Vilas,  1  Abb.  U.  S.  284;  S.  C.  2  Biss.  110;  Hatch  v.  Chicago,  R.  I.  &  P.  R. 
R.  Co.  6  Blatchf.  105;    Fisk  v.  U.  P.  R.  R.  Co.  6  Blatchf.  362;  S.  C.  8 


89  AMOUNT   IN  DISPUTE.  §   4  d 

Blatchf . 243 ;  Muns  v.  Dupont, 2  Wash.  C.  C.  463 ;  Ladd v.  Tudor,  3  Wood. 
&  M.  325. 

4  Gordon  v.  Longest,  16  Peters,  97 ;  Roberts  v.  Nelson,  8  Blatchf.  74. 

5  Stanley  v.  Chicago,  E,.  I.  &  P.  R.  R.  Co.  3  Cent.  L.  J.  430;  Matthews 
V.  Lyall,  6  McLean,  13;  Wright  v.  Wells,  Peters  C.  C.  220. 

6  Stevens  v.  Richardson,  9  Fed.  Rep.  191. 

7  Stevens  v.  Richardson,  9  Fed.  Rep.  191. 

8  Healey  v.  Prevost,  25  Int.  K.  R.  240;  Postmaster-General  v.  Cross, 
4  Wash.  C.  C.  326;  Martin  v.  Taylor,  1  Wash.  C.  C.  1. 

9  Fisk  V.  Fisk,  4  Martin  N.  S.  676. 

10  New  Orleans  etc.  R.  R.  Co.  v.  Mississippi,  102  U.  S.  135;  The 
Removal  Cases,  100  U.  S.  457;  Insurance  Co.  v.  Dunn,  19  Wall.  214; 
Ayers  v.  Chicago,  101  U.  S.  184;  Railroad  Co.  v.  Ketchum,101  U.  S.  289; 
Amer.  Bible  Soc.  v.  Grove,  101  U.  S.  610;  Bui-ke  v.  Flood,  1  Fed,  Rep. 
641. 

11  Insurance  Co.  v.  Dunn,  19  Wall.  214;  Gordon  v.  Longest,  16 
Peters,  98;  Kenouse  v.  Martin.  18  How.  198;  Stevens  v.  Phoenix  Ins. 
Co.  41  N.  Y.  149;  Hadley  v.  Dunlop,  10  Ohio  St.  I;  Stanley  v.  Chicago,  R. 
L  &  P.  K.  R.  Co.  3  Cent.  L.  J.  430. 

12  Home  Ins.  Co.  v.  Curtis,  32  Mich.  402. 

13  Hanover  Nat.  B'k  v.  Smith,  13  Blatchf.  224. 

14  Hanover  Nat.  B'k  v.  Smith,  13  Blatchf.  224. 

15  Hanover  Nat.  B'k  v.  Smith,  13  Blatchf.  224. 

§4d.     Right    dependent    on    citizenship.— The 

right  of  removal  dei^ends  on  foreign  citizenshij)  or  alien- 
age, i  Suits  against  an  alien  include  only  suits  between 
an  alien  and  a  State,  or  a  citizen  thereof.-  If  both  parties 
to  a  suit  are  aliens,  there  can  be  no  removal,^  nor  can 
there  be  a  remoA^al  if  plaintiff  is  an  alien;  ^  and  if  a  citi- 
zen of  the  State  is  one  of  the  defendants  with  an  alien,  it 
cannot  be  removed. ^  An  alien  is  not  a  citizen,  though 
the  State  laws  have  given  him  a  right  to  vote.6  Resident 
unnaturalized  foreigners  may  remove  causes,  although 
by  State  laws  they  may  vote  or  hold  office  under  the  State 
government."  If  an  alien  has  merely  filed  his  declara- 
tion of  intention  to  become  a  citizen,  he  is  still  an  alien,  s 
A  foreign  corporation  is  an  alien,  and  may  remove  the 
cause.'-^  To  authorize  a  removal,  the  controversy  must 
be  between  a  citizen  of  the  State  where  suit  is  brought 
and  a  citizen  of  another  State,!''  and  the  requisite  citizen- 
ship must  exist  at  the  time  of  the  commencement  of  the 
action.ii  That  it  is  sufficient  if  it  existed  at  the  time  of 
the  application   for  removal   has  also   been    decided. i^ 


§  4  e  AMOUNT  IX  DISPUTE.  90 

The  right  founded  on  citizenshii)  of  the  ]parties  dejjends 
on  their  citizenshiij  as  persons.i^  The  citizenship  of  exec- 
utors is  determined  by  the  State  in  which  they  are  citi- 
zens, and  not  by  the  State  where  they  take  out  letters  ;14 
so  if  an  executor  or  administrator  removes  to  another 
State,  he  may  sue  in  the  State  where  his  letters  were 
granted.  15  If  the  action  is  by  or  against  the  deceased, 
the  executor  or  administrator  may  prosecute  or  defend  it, 
without  reference  to  his  own  citizenship ;  i6  but  if  he  and 
the  defendant  are  citizens  of  the  same  State,  the  Federal 
court  has  no  j  urisdiction,  although  the  intestate  or  testa- 
tor was  a  citizen  of  another  State. i" 

1  Fisk  V.  U.  P.  R.  R.  Co.  6  Blatcbf.  364. 

2  IMossmau  v.  Higgiuson,  4  Dall.  12;  Hodgson  v.  Bowerbank,  5 
Cranch,  303. 

3  Orosco  V.  Gagliardo,  22  Cal.  83. 

4  Galvin  v.  BoutweU,  9  Blatcbf.  470. 

5  Deunistour.  Potts,  19  Miss.  36. 

6  Lanz  v.  Ptaudall,  4  Dill.  425. 

7  Lanz  v.  Ptandall,  4  Dill.  425. 

8  Lanz  v.  Randall,  4  Dill.  425. 

9  Terry  v.  Imperial  F.  Ins.  Co.  3  Dill.  403. 

10  West  V.  Aurora,  G  Wall.  139. 

11  Rawle  V.  Pbelps,  8  Fed.  Rep.  356. 

12  McLean  v.  .St.  Paul  &  Cbicago  R.  R.  Co.  16  Blatcbf.  -309;  Jackson 
1'.  Mutual  Ins.  Co.  3  Woods,  413;  Jackson  v.  Ins.  Co.  60  Ga.  423;  Insur- 
ance Co.  V.  Laettel,  7  Cent.  L.  J.  378;  Curtin  v.  Decker,  11  Tbe  Re- 
porter, 290. 

13  Amory  i'.  Amory,  95  U.  S.  186. 

14  Amory  v.  Amory,  95  U.  S.  186;  Geyer  v.  Hancock  Mut.  Life  Ins. 
Co.  50  N.  H.  224. 

15  Rice  V.  Houston,  13  Wall.  66. 

16  Clarke  r.  Mathewson,  12  Peters,  164;   S.  C.  2  Sum.  262. 

17  Coal  Co.  V.  Blatcbf ord,  11  Wall.  172;  Dodge  v.  Perkins,  4  Mason, 
435;  Childress  v.  Emery,  8  Wbeat.  642;  Carter  v.  Treadwell,  3  Story,  25; 
Green's  Administratrix  v.  Creigbton,  23  IIow.  90. 

§  4e.  From  any  State  court.— The  act  does  not 
apply  to  a  suit  brought  in  a  Territorial  court,  although  on 
the  admission  of  such  Territory  as  a  State  such  suit  passed 
iuto  the  jurisdiction  of  a  State  court. i  A  cause  may  be 
removed  from  any  State  court,  whether  of  limited  or  gen- 
eral jurisdiction,  if  citizenship  and  amounts  are  within  the 


91  ALiExs.  §§  5-5  a 

statute  provisions;  2  but  a  justice's  court  is  not  deemed 
a  State  court.^  An  action  brouglit  by  the  District  of 
Columbia  against  an  alien  cannot  be  removed.^  The  cir- 
cuit court  for  the  district  within  the  territorial  limits  on 
which  the  suit  is  pending  is  in  the  "proper  district. "^ 

1  Ames  V.  Colorado  Cent.  K.  R.  Co.  4  Dill.  251 ;  S.  C.  4  Cent.  L.  J.  199. 

2  Gaines  v.  Fuentes,  92  U.  S.  10;  S.  C.  3  Cent.  L.  J.  371 ;  8  Ch.  L.  N. 
225. 

3  Kathbone  Oil  Co.  v.  Eauscli,  5  "W.  Va.  79. 

4  Cessel  v.  McDonald,  57  How.  Pr.  175;  S.  C.  16  Blatclif.  150. 

5  Knowltoii  V.  Congress  &  Empire  S.  Co.  13  Blatclif.  170. 

§  5.    "When  the  suit  is  against  an  alien,  or  is  by  a 

citizen  of  the  State  icherein  it  is  brought,  and  against  a  citi- 
zen of  another  State,  it  may  be  removed  on  the  petition  of  such 
defendant  filed  in  said  State  court  at  the  time  of  entering 
his  appearance  in  said  State  court. 

Rev.  Stats.  §639,  subd.  1. 

XoTE.— Clause  repealed  by  the  Act  of  March  3,  1875. 
La  Mothe  Manuf.  Co.  v.  National  Tube  Works,  15  Blatchf. 
432;  Girardey  u.  Moore,  3  Woods,  397;  Whitehouse  v.  In- 
surance Cos.  2  Fed.  Eep.  498;  Cook  v.  Ford,  4  Cent.  L.  J. 
560;  McLean  v.  Chicago  &  St.  P.  E.  R.  Co.  16  Blatchf.  309; 
Kew  Jersey  Zinc  Co.  v.  Trotter,  23  Int.  Rev.  Rec.  410.  It 
is  superseded  by  the  latter  act.  Norris  v.  Mineral  Point  T. 
Co.  7  Fed.  Rep.  272. 

§  5  a.  Appearance.— The  petition  must  be  filed  at  the 
time  of  entering  an  appearance,i  and  the  appearance 
must  iirst  be  entered  in  the  State  court.2  This  require- 
ment was  intended  not  only  to  put  the  defendant  to  an 
election  of  his  tribunal,  but  to  give  the  opposite  party 
early  notice  of  his  intention.3  To  entitle  a  defendant  to 
a  removal  from  the  supreme  court,  the  applicant  must 
file  his  petition  in  the  supreme  court  at  the  time  of  put- 
ting on  special  bail;  giving  notice  of  the  petition  at  the 
next  term,  and  then  filing  it,  is  not  sufficient.*  If  a  suit  is 
against  a  citizen  of  another  State,  the  party  must  file  his 


§  5  a  ALIENS.  92 

petition  at  the  time  he  enters  his  appearance.^  Defend- 
ants may  apply  at  different  times  when  their  appearances 
are  entered  at  different  times.  6  The  application  must  be 
made  at  the  time  of  entering  the  appearance  in  the  State 
court,  and  the  right  is  waived  if  defendant  demurs,  pleads, 
or  answers,  or  otherwise  submits  to  the  jurisdiction^ 
The  filing  of  a  pleading  or  agreement  by  defendant, 
duly  signed  by  his  solicitor,  and  making  an  applica- 
tion thereon,  is  entering  an  appearance,  s  If  petition- 
er enters  into  an  agreement  that  the  case  shall  remain 
on  the  docket,  and  thereby  obtains  a  continuance,  it  shall 
be  deemed  an  appearance.-*  A  landlord  appears  when  he 
is  admitted  as  a  defendant.!*^  If  a  plaintiff  has  taken  no 
step  to  obtain  a  judgment  by  default,  defendant  may  ap- 
pear and  file  his  petition  for  removal. n  Where  the  State 
law  does  not  require  a  formal  ajDpearance,  filing  a  petition 
for  removal  is  a  sufiicient  appearance. i-  Appearance  and 
entering  bail  are  separate  acts.i^  So  giving  an  undertak- 
ing with  sureties  on  an  arrest  is  not  an  appearance. i'^  If 
defendant  opposes  a  motion  for  an  injunction,  and  files  an 
answer  which  is  read  at  the  hearing,  he  cannot  remove  the 
suit. 15  Or  where  he  legally  and  properly  assents  to  the 
jurisdiction.16  As  where  he  appears  and  answers  the  orig- 
inal bill.i"  A  service  of  notice  of  appearance  is  not  an 
appearance. IS  Nor  is  the  giving  of  formal  notice  of  re- 
tainer; 19  nor  a  mere  agreement  between  the  parties  that 
defendant  shall  have  further  time  to  answer.'-^  If  defend- 
ant obtains  an  order  extending  the  time  to  answer,  it  is 
equivalent  to  an  appearance. -i  If  the  court  appoints  an 
attorney  to  represent  an  absent  defendant,  his  appearance 
is  not  appearance  by  defendant.--  An  appearance  in  open 
court,  at  a  special  term  held  out  of  the  district,  is  not  an 
appearance  entitling  to  a  removal. -^  Where  the  defend- 
ants are  served  at  different  times,  or  at  different  times 
enter  their  appearance,  they  may  each  at  such  different 
times  make  application.'-^  Where  some  of  the  defendants 
removed  a  cause  regularly,  others  cannot  enter  an  original 


93  ALIENS.  §  5  b 

appearance  in  sucli  court. -5  Notice  of  appearance  filed 
with  the  clerk  at  the  time  of  the  application  to  remove  is 
entering  an  appearance,  but  mere  notice  served  on  the 
plaintiff  is  not.-6  The  State  court  cannot  cause  an  appear- 
ance to  be  entered  nunc  pro  tunc,  so  as  to  entertain  a 
motion  for  a  new  trial.^" 

1  Yulee  V.  Vose,  94  U.  S.  439;  Kingsbury  v.  Kingsbury.  3  Biss.  60; 
Redmoucl  r.  Kussell,  12  Johns.  153 ;  Crane  r.  Eeeder,  28  Mich.  527 ;  Webre 
V.  Puroc,  15  La.  An.  65;  Gibson  v.  Johnson,  Peters  C.  C.  44 ;  Davis  v.  Cook, 
y  Nev.  134.    But  see  Gelstou  v.  Johnson,  3  N.  J.  625. 

2  Ward  v.  Arredondo,  1  Paine,  410;  Field  v.  Lownsdale,  Deady,  288. 

3  Kedmond  v.  Russell,  12  Johns.  153. 

4  Eedmond  v.  Russell,  12  Johns.  153. 

5  Sav.  Bank  of  Cincinnati  v.  Benton,  2  Met.  (Ky.)  240. 

6  Ward  v.  Arredondo,  1  Paine,  410. 

7  West  V.  Aurora,  6  Wall.  139;  Sweeney  v.  Coffin,  1  Dill.  73. 

8  Pugsley  v.  Freedman's  S.  &  T.  Co.  2  Tenn.  Ch.  130, 

9  Robinson  r.  Potter,  43  X.H.  188. 

10  Jackson  v.  Stiles,  4  Johns.  493. 

11  Carpenter  v.  New  York  &  X.  H.  R.  R.  Co.  11  How.  Pr.  481. 

12  Sweeney  v.  Coffin,  1  Dill.  73;  Stoker  z?,  Leavenworth,  4  Martin  N. 
S.  676. 

13  Suydam  v.  Smith,  1  Denio,  263;  Redmondr.  Russell,  12  Johns.  153. 

14  Durand  v.  Hollins,  3  Duer,  686;  Arjo  v.  Monteiro,  1  Caines,  248; 
Bird  V.  Munay,  Cole.  &  C.  Cas.  63;  Dart  v.  Arms,  19  How.  Pr,  429;  Haz- 
ard V.  Duraut,  9  R.  I.  6U2. 

15  Livingston  v.  Gibbons,  4  Johns.  Ch,  94.  See  Cooley  v.  Lawrence, 
12  How.  Pr.  176;  Pugsley  v.  Freedman's  S.  &  T.  Co.  2  Tenn,  Ch.  130. 

16  Robinson  v.  Potter,  43  X.  H.  188. 

17  Richardson  v.  Packwood,  1  Martin  N.  S.  290. 

18  Chatham  Xat.  Bk.  v.  Merchants'  Xat.  Bk.  1  Hun,  702. 

19  Disbrow  v.  Driggs.  8  Abb.  Pr.  305,  note ;  Xor ton  v.  Hayes,  4  Denio, 
245;  Field  v.  Baker,  I  Code  Rep.  (X.  S.)  292. 

20  Disbrow  v.  Driggs,  8  Abb.  Pr,  305,  note. 

21  Ayres  v.  Western  R.  R.  Corp.  32  How.  Pr.  351;  S.  C.  48  Barb.  132. 

22  Fisk  V.  Fisk,  4  Martin  X.  S.  676. 

23  Bristolf.  Chapman,  34  How.  Pr.  140. 

24  Shelby  v.  Hoffman,  7  Ohio  St.  453;  citing  Ward  v.  Arredondo,  1 
Paine,  370. 

25  Ward  v.  Arredondo,  1  Paine,  410. 

26  Field  v.  Blair,  1  Code  Rep.  (X.  S.)  361. 

27  Ward  r.  Arredondo,  1  Paine,  410.  See  Gibson  r.  Johnson,  Peters 
C.  C.  44. 

§  5  b.   Qualification  as  to  citizenship.— Under  the 

first  clause  of  §G39.  a  case  cannot  be  removed  unless  all 


§  5  b  ALIENS,  94 

the  parties  plaintiff  are  citizens  of  the  State  where  the 
suit  is  brought,  and  all  the  defendants  are  citizens  of  some 
other  State,  or  are  aliens  ;i  so  where  three  out  of  four 
were  aliens,  the  application  was  denied.2  If  an  indispen- 
sable party  was  a  citizen  of  the  same  State  with  the 
plaintiff,  jurisdiction  would  be  defeated  ;3  so  if  a  citizen 
of  a  State  is  joined  with  a  citizen  of  another  State,^  or 
where  suit  is  brought  by  an  alien  conjointly  with  a  citizen 
of  the  State, 5  or  if  some  of  the  defendants  are  citizens  of 
the  State  where  suit  is  brought  ;6  when  there  were  several 
defendants,  all  the  persons  must  be  within  the  description 
of  the  persons  entitled  to  a  transfer,  and  all  must  join  in 
the  application  J  So  in  an  ejectment  case,  where  but  one 
was  an  alien,  the  application  was  denied,8  or  if  one  of 
several  plaintiffs  is  a  citizen  of  another  State,9  or  if  the 
defendants  are  all  citizens  of  the  State  where  suit  is 
brought,!^  or  if  the  defendant  was  a  citizen  of  the  State 
at  the  time  suit  was  commenced,  it  cannot  be  removed;  ^^ 
but  the  rule  does  not  apply  to  mere  nominal  or  formal 
parties.  12  Where  the  writ  is  served  on  one  alone,  he  may 
remove  the  cause  without  regard  to  others  named  as  de- 
fendants. ^3  And  if  only  one  partner  of  a  firm  is  served 
with  process,  he  may  file  a  petition  for  removal. i^  If  one 
defendant  is  served  personally,  and  the  other  is  served  by 
publication,  the  one  served  personally  cannot  remove. 15 
It  is  not  necessary  that  the  application  be  made  by  all  the 
defendants  at  the  same  time;  each  may  apply  for  removal 
on  his  ai)pearance.i6  It  must  appear  that  the  plaintiff  is 
a  citizen  of  the  State  in  which  the  suit  is  brought ,  i"  at 
the  commencement  of  the  suit.^s 
See  post  A  10  i- 

1  Ex  parte  Girard,  3  Wall.  Jr.  263:  Beavdsley  v.  Torrey,  4  Wash.  C. 
C.  286;  Smith  v.  Kines,  2  Sum.  330;  Ward  v.  Arredondo,  1  Paine.  410; 
W.  A.  &  G.  K.  R.  Co.  V.  A.  &  W.  R.  R.  Co.  19  Gratt.  592;  Denniston  v. 
Potts,  19  Miss.  36;  Pugsley  v.  Freedmau's  S.  &  T.  Co.  2  Tenu.  Ch.  130; 
lu  re  Turner,  3  Wall.  Jr.  26,  263;  Beery  r.  Irick,  22  Graft.  4S4;  Perkins 
V.  Morgan,  27  La.  An.  229;  Goodrich  v.  Hunton,  29  La.  An.  372;  Hazard 
V.  Durant,  9  E.  I.  602;  Calderwood  v.  Hager,  20  Cal.  167;  Calderwood  v. 
Braly.  23  Cal.  97;  Bryan  i'.  Ponder,  23  Ga.  480;  Hubbard  v.  Northern  K. 
Co.  3Blatohf.  bi4;  Wilson  r.  Blodgett.  4  McLean,  363;  Fisk  r.  Chicago, 
K.  I.  &  P.  R.  R.  Co.  53  Barb.  472;  Taylor  v.  Rockefeller,  25  Pitts.  L.  J. 
137;  Dumi  v.  Waggener,  3  Yerg.  59. 


j5  aliens.  §  6 

2    Dennistoun  v.  N.  T.  &  N.  H.  E.  K.  Co.  1  Hilt.  62;  S.  C.  2  Abb.  Pr. 

y  Commercial  etc.  Bank  of  Vicksburg  v.  Slocomb,  14  Peters,  65; 
Ha,'an  v.  Walker,  14  How.  36;  Shields  t>.  Barrow,  17  How.  141;  Clear- 
water t'.  Meredith,  21  How.  492;  Barney  v.  Baltimore  City,  6  Wall.  286: 
Jonesi;.  Andrews,  10  Wall.  332;  Brj'ant  t;.  Rich,  21  Wall.  41;  S.  C.  106 
Mass.  180;  Ober  v.  Gallagher,  93  U.  S.199;  Wilson  v.  Blodgett,  4  McLean, 
3!«:  Irabusch  y.  Farwell,  1  Blatchf.  571;  Tuckerman  v.  Bigelow,  21  The 
Ki-porter,  208. 

4  Hubbard  v.  Northern  R.  R.  Co.  3  Blatchf.  84. 

5  Dennistoun  v.  N.  Y.  &  N.  N.  H.  R.  R.  Co.  1  Hilt.  62;  S.  C.  2  Abb. 
Pr.  278,  415. 

6  Hatch  V.  Chicago  R.  I.  6  Blatchf.  105;  Wilson  v.  Blodgett,  4  Mc- 
Lean, 363;  Ex  parte  Girard,  3  Wall.  Jr.  263;  Beardsley  v.  Torrey,  4 
Wash.  C.  C.  286;  Smith  t;.  Rines,  2  Sum.  338;  Calderwood  v.  Hager,  20 
Cal.  167;  New  Orleans  C.  &  B.  Co.  v.  Recorder, 27  La.  An.  291 ;  State  v. 
4'om.  Pleas.  3  Ohio,  49;  Ludlow  v.  Kidd,  3  Ohio,  48;  Miller  v.  Lynde,  2 
Robt.  444 ;  Tibbatts  v.  Berry,  10  Mon.  B.  473 ;  Leonard  v.  Jones,  2  Edw.  136; 
."iiu'lby  V.  Hoffman,  9  Ohio  St.  453. 

7  Calderwood  v.  Hager,  20  Cal.  167. 

8  Calderwood  v.  Hager,  20  Cal.  167.  See  Reed  v.  Calderwood,  22 
Cal.  463. 

9  Hubbard  v.  Northern  R.  R.  Co.  3  Blatchf.  84;  Ex  parte  Turner,  3 
Wall.  Jr.  258;  Fisk  v.  Chicago,  R.  I.  &  P.  R.  R.  Co.  53  Barb.  472;  Hazard 
V.  Durant,  9  R.  I.  602;  Knapp  v.  Railroad  Co.  20  Wall.  117. 

10  Lifiord  v.  Beatty,  12  Ohio  St.  189. 

11  Ins.  Co.  V.  Pechner,  95  TJ.  S.  183;  Richardson  v.  Packwood,  1 
:\lartin  N.  S.290;  Risley  v.  Indianapolis  B.  &  W.  R.  R.  Co.  8  N.  Y.  Supr. 
2U.'. 

12  Brown  v.  Strode,  5  Cranch,  303;  Wormley  v.  Wormley,  8  Wheat. 
4J1;  Wood  V.  Davis,  18  How.  467;  Ward  v.  Arredondo,  1  Paine,  410. 

13  Fallis  V.  McArthur,  1  Bond.  100;  Norton  v.  Hayes,  4  Denio,  245; 
Davis  V.  Cook,  9  Nev.  134. 

14  Vandervoort  v.  Palmer,  4  Duer,  677. 

15  Bryan  v  Ponder,  23  Ga.  480. 

16  Ward  v.  Arredondo,  1  Paine,  410. 

17  Fisk  V.  Chicago,  R.  I.  &  P.  R.  R.  Co.  53  Barb.  472;  Harrison  v. 
Shorter,  59  Ga.  512;  Smith  v.  Butler,  38  How.  Pr.  192;  Savings  Bank  v. 
Beaton,  2  Met.  (Ky.)  240. 

l-<  People  V.  Superior  Court,  34  111.  356;  Upton  v.  N.  J.  S.  R.  R.  Co. 
25  N.  J.  Eq.  372;  Holdenv,  Putnam  F.  Ins.  Co.  46  N.  Y.  1;  Pechner  v. 
Phuenix  Ins.  Co.  95  U.  S.  183. 

§  6.    Against  an  alien  and  a  citizen.— TF74e?i  the 

suit  is  against  an  alien  and  a  citizen  of  the  State 
wherein  it  is  brought,  or  is  by  a  citizen  of  such  State 
against  a  citizen  of  the  same  and  a  citizen  of  another 
State,  it  may  be  so  removed,  as  against  said  alien  or  citi- 
zen of  another  State,  upon  the  petition  of  such  defendant, 
filed  at  any  time  before  the  trial  or  final  hearing  of  the  cause, 
if  so  far  as  it  relates  to  him  it  is  brought  for  the  purpose  of 


§6a 


1 


restraining  or  enjoining  Jwn,  or  is  a  suit  in  which  there  can 
be  a  final  determination  of  the  controversy,  so  far  as  con- 
cerns him,  loithoiit  the  presence  of  the  other  defendants  as 
parties  in  the  cause.  But  such  removal  shall  not  take  away 
or  prejudice  the  rigJit  of  the  plaintiff  to  proceed  at  the  same 
time  loith  the  suit  in  the  State  court,  as  against  the  other 
defendants. 

Rev.  Stats.  §  639,  subd.  2. 

KoTE. — Section  not  repealed  by  the  Act  of  Marcli  3, 
1875,1  as  the  latter  act  only  relates  to  the  removal  of  the 
whole  suit.2  That  it  is  repealed  so  far  as  the  subdivision 
clause.3 

1  Wormser  v.  Dahlraan,  16  Blatchf.  319;  Girardy  ». Moore,  3  Woods, 
397;  5  Cent.  L.  J.  7S;  Wormser  v.  Kline,  57  How.  Pr.  2s6;  New  Jersey 
Zinc  Co.  V.  Trotter,  •_'3  Int.  Kev.  Rec.  410;  Ex  parte  GrimljaU,  8  Cent. 
L.  J.  151;  McLean  v.  Chicago  etc.  R.  E.  Co.  16  Blatchf.  319;  Hyde  v. 
Ruble,  3  Morr.  Trans.  516;  Blake  r.  McKim,  1U3  U.  S.  336;  Barney  t;.  La- 
tham.  103  U.  S.  205;  Clark  i-.  Chicago,  R.  I.  &  P.  R.  K.  Co;  Sweet  v. 
Same,  11  Fed.  Rep.  355;  Railroad  Co.  v.  Mississippi,  102  U.  S.  141. 

2  Osgood  V.  Chicago  etc.  R.  R.  Co.  6  Biss.  3.30;  Chicago  v.  Gage,  6 
Biss.  467;  Hervev  v.  Illinois  etc.  R.  R.  Co.  7  Biss.  103;  Girardy  t-.  Moore, 
3  Wood,  397;  S.  C.  5  Cent.  L.  J.  78;  CaiTahar  r.  Brennau,  7  Biss.  497; 
Ruckmau  v.  Ruckman,  1  Fed.  Rep.  587;  Burch  v.  Davenport  etc.  R.  E. 
Co.  46  Iowa,  449.  See  Removal  Cases,  100  U.  S.457;  Arapahoe  Co.  u. Kan- 
sas &  P.  R.  R.  Co.  4  Dill.  277.    But  see  Cook  v.  Ford,  4  Cent.  L.  J.  560. 

3  Clark  v.  Chicago,  M.  &  St.  P.  R.  R.  Co.  11  Fed.  Rep.  355.  See  Hyde 
V.  Ruble,  3  Morr.  Trans.  516. 

§  6  a.  Injunction.— The  right  of  removal  attaches 
where  suit  was  brought  to  obtain  an  injunction  against  a 
citizen  of  another  State, ^  although  another  person  is 
made  a  party  defendant  against  whom  no  injunction  is 
sought; 2  and  although  it  does  not  appear  that  the  suit 
can  be  brought  to  a  final  determination  as  respects  him 
without  the  presence  of  other  defendants;  ^  or  if  the  other 
defendants  disclaim  all  interest  in  the  suit;  ^  but  the  sole 
purpose  of  the  bill  must  be  to  restrain  the  defendants;* 
but  a  bill  to  obtain  a  dissolution  of  partnership  and  re- 
strain partners  from  interfering  with  partnershij)  property 
cannot  be  removed  where  some  are  citizens  of  the  same 
State. 6  So  the  cause  cannot  be  removed  if  the  bill  prays 
for  an  injunction,  if  it  is  merely  incidental  to  the  relief 


07  ALIENS.  §  6  b 

sought  J  The  word  "  or,"  as  used  in  the  statute,  shows 
that  Congress  intended  to  provide  for  the  case  where  the 
suit  was  to  obtain  an  injunction,  and  also  where  the  pres- 
ence of  other  defendants  is  not  necessary  to  a  determina- 
tion of  the  controversy.  8  If  a  party  files  a  bill  to  enjoin 
an  execution  creditor,  the  presence  of  the  sheriff  is  un- 
necessary to  final  determination  of  the  controversy. ^ 

1  risk  V.  Chicago,  K.  I.  &  P.  K.  R.  Co.  53  Barb.  472 ;  3  Abb.  Pr.  N.  S. 
463;  Stewart  v.  Mordecai,  4U  Ga.  1. 

2  Stewart  v.  Mordecai,  40  Ga.  1. 

3  Fisk  V.  Chicago,  E.  I.  &  P.  R.  R.  Co.  53  Barb.  472 ;  3  Abb.  Pr.  N.  S. 
453. 

4  New  Jersey  Zinc  Co.  v.  Trotter,  23  Int.  Rev.  Kec.  410. 

'  5    Taylor  v.  Rockefeller,  25  Pitts.  L.  J.  137;  Upton  v.  New  Jersey  S. 
R.  R.  Co.  25  N.  J.  Eq.  372. 

6  Taylor  v.  Rockefeller,  25  Pitts.  L.  J.  137. 

7  Upton  V.  New  Jersey  S.  R.  R.  Co.  25  N.  J.  Eq.  372. 

8  risk  V.  Chicago,  R.  I.  &  P.  R.  R.  Co.  53  Barb.  472. 

9  Allen  V.  Ryerson,  2  Dill.  501. 

§  6  b.    Final  determination  of  controversy.— The 

"controversy"  is  the  dispute  between  the  parties,  to  be 
ascertained  by  an  inquiry  as  to  what  is  asserted  and  de- 
nied.i  To  ascertain  what  is  the  controversy,  inquiry  must 
be  made  as  to  what  is  asserted  or  denied,  or  what  is 
claimed  and  resisted.^  If  the  controversy  is  susceptible 
of  division,  the  case  may  be  removed,  although  some  of 
the  defendants  are  citizens  of  the  State  where  suit  is 
brought. 3  Cases  where  there  can  be  a  final  determination 
of  the  controversy  are  removable  without  the  presence  of 
of  the  other  defendants.'*  An  alien  or  non-resident  de- 
fendant, subject  to  the  conditions  specified,  may  remove 
the  cause  as  between  himself  and  the  plaintiff,  leaving 
the  cause  as  to  the  other  defendants  to  proceed  in  the 
State  court ;  5  but  no  one  can  remove  a  cause  unless  a  sep- 
arate judgment  can  be  rendered  against  him  without  the 
presence  of  the  other  defendants.^  "Where  the  title  to 
real  estate  is  held  by  one  of  the  defendants  for  the  benefit 
of  all,  a  final  determination  can  be  had,  although  a  part 
of  the  defendants  do  not  join,  if  it  is  alleged  that  the  title 
Desty  Removal.— 9. 


§  6  C  ALIENS.  98 

was  obtained  by  the  fraud  of  all  the  defendants^  In  a 
suit  to  quiet  title  against  tenants  in  common,  one  defend- 
ant as  such  tenant  may  remove  the  case,  if  he  is  otherwise 
within  the  provisions  of  the  act.s  Where  an  indorser 
claims  the  benefit  of  usurious  interest  paid  by  the  maker, 
the  case  can  be  determined  without  the  presence  of  the 
maker.9  One  of  several  defendants,  sued  as  partners, 
may,  if  the  other  requisites  exist,  have  the  cause  removed 
so  far  as  concerns  himself,  if  there  can  be  a  final  determi- 
nation so  far  as  concerns  him.io  If  there  can  be  no  final 
determination  of  the  controversy  without  the  presence  of 
the  other  defendants,  the  case  cannot  be  removed  by  the 
petitioner  alone.n  If  citizens  of  the  State  are  joint 
defendants  with  citizens  of  other  States,  the  case  cannot 
be  removed.!-  j^^  allegation  in  the  petition  that  the  case 
is  susceptible  of  division  is  an  allegation  of  law.is 
See  post,  %  10  z. 

1  Ex  parte  Andrews,  40  Ala.  639. 

2  Ex  parte  Andrews,  40  Ala.  639. 

3  Fields  v.  Lamb,  Deady,  430;  Bixby  v.  Coiise,  8  Blatchf.  73;  Dart 
V.  Walker,  43  How.  Pr.  29. 

4  Allen  v .  Kyerson,  2  Dill.  501 ;  Bixby  v.  Couse,  8  Blatchf.  73. 

5  Sewing  Macb.  Co.'s  Case,  18  Wall.  553;  S.  C.  110  Mass.  70;  McGin- 
nity  V.  White,  3  Dill.  350;  Field  v.  Lowusdale,  Deady,  288. 

6  Merwin  v.  Wexel,  49  How.  Pr.  115. 

7  Lewist).  White,7  Ch.  L.N.  116. 

8  Field  t- .  Lownsdale,  Deady,  288. 

9  Stewart  v.  Mordecai,  40  Ga.  1. 

10  McGinnity  v.  White,  3  Dill.  350;  Wormser  v.  Dahlman,  57  How. 
Pr.  286.  _ 

11  Hodgkins  v.  Hayes,  9  Abb.  Pr.  N.  S.  87;  Darst  v.  Bates,  51  HI.  439; 
Burch  V.  Davenport  &  St.  P.  R.  R.  Co.  46  Iowa,  449;  Washington  A.  & 
G.  K.  E.  Co.  V.  Alexandria  &  W.  K.  E.  Co.  19  Gratt.  592. 

12  North  Eiv.  S.  Co.  v.  Hoffman,  5  Johns.  300;  Williams  r.  Price,  5 
Mmif.  507. 

13  Levy  v.  O'Neil,  14  Abb.  Pr.  N.  S.  63. 

§  6c.  Necessary  parties.  —  "Where  redemption  of 
a  mortgage  is  sought,  and  the  land  is  held  in  severalty, 
all  holders  are  necessary  parties.^  So  where  a  bill  is  filed 
against  a  mortgagor  and  others  to  obtain  an  accounting, 
the  cause  cannot  be  removed  on  application  of  one  of  the 


99  ALIENS.  §   6  C 

parties  joined  with  the  mortgagor;  2  and  where  a  fore- 
closure suit  is  filed  against  a  mortgagor  and  a  subsequent 
mortgagee,  the  latter  cannot  remove  the  cause.3  An  ac- 
tion to  enforce  a  joint  liability  in  equity  cannot  be  re- 
moved.4  if  a  bill  to  quiet  title  is  filed  against  several 
persons  as  tenants  in  common,  one  of  them  may  remove 
it; 5  and  if  one  partner  only  is  served  with  process,  he 
may  remove  the  cause;  ^  but  a  suit  against  partners  to  re- 
cover the  value  of  goods  sold  is  not  susceptible  of  divis- 
ion.'' A  foreign  landlord  appearing  as  co-defendant  in 
ejectment  cannot  remove  the  cause  unless  the  tenant 
who  is  a  citizen  of  the  State  disclaims  all  interest  in  the 
premises.8  If  a  person  files  an  interpleader,  the  cause 
cannot  be  removed  without  the  presence  of  both  defend- 
ants.9  An  action  of  tort  against  several  defendants,  for 
a  conspiracy,  cannot  be  removed  by  part  of  them  under 
the  Acts  of  1866  and  1867,io  nor  under  the  Act  of  1875.ii  If 
a  partner  brings  an  action  of  account  against  his  copartner 
and  another,  the  case  is  not  susceptible  of  a  division. i- 
An  attachment  proceeding  is  of  such  a  nature  that  the 
debtor  and  garnishee  cannot  be  severed,!^  the  garnishee 
not  being  a  defendant  within  tlie  meaning  of  the  statute.i^ 
Where  a  debtor  and  trustee  for  the  sale  of  land  are  de- 
fendants, the  debtor  alone  cannot  remove,  as  the  trustee 
is  a  necessary  party ;  is  so,  in  an  attachment  proceeding, 
the  debtor  and  garnishee  cannot  be  severed.16  Where  a 
corporation,  a  trustee,  and  the  bond-holders  are  defend- 
ants, the  trustee  and  one  of  the  bond-holders  cannot  have 
the  case  removed  as  to  them.i"  A  controversy  concerning 
the  probate  of  a  will  cannot  be  removed  on  a  petition  of 
part  of  the  contestants;  is  so  one  of  several  opposing 
claimants  cannot  remove  a  cause  brought  by  an  executor 
for  settlement  of  his  trust  and  disposition  of  the  estate;  i^ 
so  a  single  creditor  or  legatee  cannot  remove  the  cause 
where  numerous  creditors  and  legatees  hold  conflicting 
claims ;  20  so  a  citizen  of  another  State,  who  makes  him- 
self a  party  to  a  cause  where  a  widow  files  a  petition 


§   7  PREJUDICE.  100 

against  an  administrator  for  her  support,  cannot  remove 
witliout  the  presence  of  the  administrator .21  A  trustee 
in  whom  the  legal  title  is  vested  is  not  a  merely  nominal 
party."  So  where  a  trustee,  a  non-resident,  institutes  the 
suit,  the  cestui  que  trust,  a  citizen  of  the  State,  cannot  re- 
move.23  The  creditor  cannot  remove  the  case  if  a  trustee 
files  a  bill  to  enjoin  him  and  the  sheriff  from  levying  exe- 
cution on  the  trust  i3roi)erty.2-i 
See  post,  §  10  m. 

1  Miller  v.  Finn,  1  Neb.  254. 

2  Upton  V.  New  Jersey  S.  R.  R.  Co.  25  N.  J.  Eq.  372. 

3  Donahoe  v.  Mariposa  L.  &  M.  Co.  5  Sawy.  63. 

4  Yulee  v.  Vose.  94  C.  S.  539;  S.  C.  64  N.  Y.  449. 

5  Field  v.  Lownsdale,  Deady,  288. 

6  Wormser  t'.  Dablman,  57  How.  Pr.  286. 

7  Merwinf.Wesell,49How.Pr.  115.    Confra;  McGinnity  t>.  White, 

3  Dill.  350. 

8  AUiii  V.  Robinson,  1  Dill.  119.  So  if  the  tenant  is  made  defendant 
in  ejectment,  the  landlord,  citizen  of  another  State,  cannot  remove  the 
cause:  Ex  parte  Turner,  3  Wall.  Jr.  258;  Ex  parte  Girard,  3  Wall.  Jr. 
263;  Beardsley  v.  Torrey,  4  Wash.  C.  G.  286;  but  see  Jackson  v.  Stiles, 

4  Johns.  4J3. 

9  George  v.  Pilcher,  28  Gratt.  299. 

10  Ex  parte  Andrews,  40  Ala.  639;  Smith  v.  Rines.  2  Simi.  338. 

11  Van  Brunt  v.  Corbin,  14  Blatchf.  496. 

12  Levy  v.  O'Neil,  14  Abb.  Pr.  N.  S.  63. 

13  Weeks  v.  Billings,  55  N.  H.  371. 

14  Weeks  v.  Billings,  55  N.  H.  371. 

15  Gardner  v.  Brown,  21  Wall.  36. 

16  Weeks  v.  Billings,  55  N.  H.  371. 

17  Cape  Girardeau  R.  R.  Co.  v.  Winston, 4  Cent.  L.  J.  127.  See  Gard- 
ner V .  Brown,  21  V/all.  36. 

18  In  re  Fraser,  10  Ch.  L.  N.  390. 

19  Ex  parte  Grimball,  8  Cent.  L.  J.  151. 

20  Peters  v.  Peters,  41  Ga.  242;  Burts  v.  Loyd,  45  Ga.  104. 

21  Peters  v.  Peters,  41  Ga.  242. 

22  Dunn  v.  Waggoner,  3  Yerg.  59. 

23  Mead  v.  Walker,  15  Wis.  499;  Geyer  v.  Hancock  Ins.  Co,  50  N.  H. 
224. 

24  Nye  V.  Nightingale,  6  R.  I.  439. 

§  7.    Prejudice  or  local  influence.— Tf7ien  a    suit 

is  betioeen  a  citizen  of  the  State  in  lohich  it  is  brought  and 
a  citizen  of  another  State,  it  may  he  so  removed  on  the  pe- 


101  PREJUDICE.  §  7  a-b 

tition  of  the  latter,  lohether  he  be  plaintiff  or  defendant, 
filed  at  any  time  before  the  trial  or  final  hearing  of  the 
suit,  if,  before  or  at  the  time  of  filimj  said  petition,  he  makes 
and  files  in  said  State  court  an  affidavit,  stating  that  he 
has  reason  to  believe  and  does  believe  that  from,  prejudice 
or  local  influence  he  will  not  be  able  to  obtain  justice  in  such 
State  court. 
Rev.  Stats.  §  639. 

§  7  a.  Statute.— The  Act  of  1867  is  constitutional,! 
and  is  not  repealed  by  the  Act  of  March  3, 1875.2  It  is  not 
expressly  repealed.^  The  policy  of  the  act  conforms  with 
that  in  regard  to  the  change  of  venue  from  one  county  or 
district  to  another;  ^  the  object  being  to  secure  an  impar- 
tial tribunal. s 

1  Chicago  &  N.  W.  R.  E.  Co.  v.  Whitton,  13  Wall.  270. 

2  Amer.  Bible  Society  v.  Grove,  101  U.  S.  610;  Boardr.  Kansas  Pac. 
R.R.  Co.  4  Dill.  277;  Deunis  v.  Alachua,  ;3  Woods.  6S3;  Farmers'  L.  ifc 
T.  Co.  V.  Chicago  P.  &  S.  R.R.  Co.  12Ch.  L.  N.  65;  New  Jersey  Zinc  Co. 
V.  Trotter,  23  Int.  Rev.  Rec.  410;  Barber  v.  St.  I.ouis,  K.  C.  &  N.  R.  R. 
Co.  43  Iowa,  223;  Wickham  z;.  Wickham,  27  N.  Y.  Supr.  239;  Wormser 
r.  Dahlraan,  16  Blatchf.  317.     Contra:  Burdick  v.  Hale,  7  Biss.  96. 

3  Whitehouse  v.  Continental  Ins.  Co.  37  Leg.  Int.  225.;  S.  C.  2  Fed. 
Rep.  498. 

4  Johnson  v.  Monell,  1  Woolw.  390. 

5  Farmers'  etc.  Trust  Co.  v.  McQuillan,  3  Dill.  381. 

§  7  b.  Prejudice  and  local  influence.— A  party  is 
not  entitled  to  remove  on  account  of  prejudice  and  local 
influence  unless  the  adverse  party  is  a  citizen  of  the  State 
in  which  the  suit  is  brought. i  The  affidavit  must  be  in 
substantial  accordance  with  the  words  of  the  statute ;  -^ 
but  it  is  not  generally  necessary  to  state  the  reasons  or 
facts  showing  the  local  prejudice  or  influence  ;3  an  affi- 
davit "to  the  best  of  his  knowledge  and  belief"  is  suffi- 
cient; 4  but  that  "plaintiff  had  reason  to  and  does  believe 
that  from  prejudice  he  will  not  be  able  to  obtain  justice 
in  the  State  court,"  is  not  sufficient  without  facts  showing 
the  reasonableness  of  his  belief.''  The  omission  of  the 
words  "and  does  believe "  is  fatal. ^  It  may  be  made  by 
an  agent  or  attorney ;  "^  but  if  made  on  his  belief  alone,  it 


§  7  b  PREJUDICE.  102 

is  insufficient. 8  A  cori^oration  nlay  make  the  required 
affidavit  by  its  authorized  ageut.9  The  affidavit  of  the 
secretary  of  a  cori^oration  must  show  that  it  is  made  at 
the  instance  or  order  of  the  corporation;  lo  and  if  made 
by  an  officer,  tliere  must  be  proof  that  he  was  authorized 
to  make  it;  ^^  but  the  president  or  general  manager  of  a 
railway  company  is  prima  facie  authorized.i^  The  affi- 
davit must  be  taken  and  certified  in  accordance  with  the 
laws  of  the  State/3  ^nd  must  be  authenticated  according 
to  such  laws;  14  and  if  taken  out  of  the  State  by  a  commis- 
sioner, it  must  be  certified  to  by  the  Secretary  of  State.is 
A  commissioner's  seal  is  presumed  to  be  official. i^  Objec- 
tions to  the  certification  may  be  waived  by  the  adverse 
party,!"  and  a  failure  to  object  will  be  deemed  a  waiver. ^8 
When  filed  it  cannot  be  contradicted  or  controverted.i^ 
This  statute  does  not  permit  a  citizen  of  the  State  in  which 
suit  is  brought  to  make  the  application  for  removal.^" 
When  the  defendant  is  a  citizen  of  the  State  where  suit  is 
brouglit,  plaintiffs  cannot  remove  the  case  on  the  ground 
of  local  pr*>.judice  if  one  of  them  is  a  citizen.of  the  same 
State,  except  where  the  whole  controversy  can  be  settled 
without  the  presence  of  tlie  other  plaintiffs.21  But  a  non- 
resident plaintiff  may  remove  a  cause  against  a  citizen  of 
the  State  in  which  suit  is  brought  and  a  citizen  of  another 
State,  the  latter  of  whom  voluntarily  appears.22  Inter- 
venors  may  remove  a  cause  under  this  section.23 

1  Amer.  Bible  So.  v.  Grove,  101  U.  S.  610. 

2  Bait.  &  O.  R.  R.  Co.  v.  New  Albany  E.  R.  Co.  53  Ind.  597.  See 
Boweu  V.  Cbase.  7  Blatcbf.  255. 

3  Anonymous,  1  Dill.  298,  note;  Meadow  V.  Min.  Co.  v.  Dodds, 
Nev.  143;  Quigley  v.  C.  P.  R.  E.  Co.  11  Nev.  350. 

4  Stoker  v.  Leavenworth,  7  La.  390 ;  De  Camp  v.  N.  J.  M.  L.  Ins.  Co. 

2  Sweeny,  431. 

5  Sands  v.  Smith,  1  Dill.  298,  note;  Goodrich  v.  Huntou,  29  La.  An. 
372. 

6  Bait.  &  O.  R.  E.  Co.  v.  New  Albany  R.  E.  Co.  53  Ind.  597.  , 

7  Dennis  v.  Alachua  Co.  3  Woods,  683;  Kain  v.  Texas Pac.  R.  E.  Co.  <J 

3  Cent.  L.  J.  12.    Contra:  Miller  v.  Finn,  1  Neb.  254. 

8  Cooper  r.  Condon.  15  Kans.  572;  Tunstallr.  Madison,  30  La.  An. 
471;  Burlington  P.  &  C.  R.  K.  Co.  v.  N.  A.  &  S.  E.  R.  Co.  63  Ind.  597. 
The  reason  why  the  party  applying  does  not  make  the  affidavit  should 
be  given:  Cooper  v.  Condon,  15  Kan.  572. 


103  PBEJCTDICE.  ^  §  8 

9  Insurance  Co.  v.  Dunn,  19  Wall.  214;  Farmers'  L.  &  T.  Co.  r.  Ma- 
quillan.  3  Dill.  279;  Minuett  v.  M.  &  St.  P.  R.  R.  Co.  3  Dill.  460;  Mix  v. 
Andes  Ins.  Co.  74  N.  Y.  53.  See  Taylor  v.  Shew,  54  N.  Y.  75;Hatchr. 
Chicago  etc.  Co.  6  Blatchf .  380 ;  Bowen  v.  Chase,  7  Blatchf .  255 ;  Anony- 
mous,"! Dill.  298,  note.    Contra:  Cooke  v.  State  Nat.  Bk.  52  N.  Y.  96. 

10  Doflge  V.  N.  W.  U.  Pack.  Co.  13  Minn.  458. 

11  Dodge  V.  N.  W.  U.Pack.  Co.  13  Minn.  458;  Mahone  t;.  M.  &  L.  R. 
R.  Co.  Ill  Mass.  72:  Quigley  v.  C  P.  K.  K.  Co.  11  Nev.  350. 

12  Minnett  v.  M.  &  St.  P.  R.  R.  Co.  3  Dill.  460. 

13  Bowen  v.  Chase,  7  Blatchf.  2.55. 

14  Bowen  v.  Chase,  7  Blatchf.  255;  Florence  v.  Butler,  9  Abb.  Pr.  N. 
S.  63. 

15  Florence  v.  Butler,  9  Abb.  Pr.  N.  S.  63. 

16  Tunstall,  v.  Madison,  30  La.  An.  471. 

17  Bowen  v.  Chase,  7  Blatchf.  255. 

18  Mix  V.  Andes  Ins.  Co.  74  N.  Y.  53. 

19  Stewart  v.  Mordecai,  40  Ga.  1. 

20  Aldrich  v.  Crouch,  10  Fed.  Rep.  305;  Babbitt  v.  Clark,  2  Morr. 
Trans.  606;  Gurnee  r.  Brunswick  Co.  1  Hughes,  270;  Murray  v.  Holden, 
2  Fed.  Rep.  740;  Forrest  v.  Keeler,  17  Blatchf.  5p;  Kerting  r.  Amer. 
Oleograph  Co.  10  Fed.  Rep.  17. 

21  Bliss  V.  Rawson.  43  Ga.  181:  Martin  v.  Coons,  24  La.  Ann.  169. 
And  see  Bryant  v.  Scott,  67  X.  C.  391. 

22  Akerlyp.  Vilas,  2  Biss.llO;  S.  C.  2  Abb.  284;  Sands  f.  Smith,  1  Dill. 
290;  S.  C.  1  Abb.  368. 

23  In  re  Iowa  &  M.  C.  Co.  10  Fed.  Rep.  401. 

§  8.  In  order  to  such  removal,  the  petitioner  in  the  cases 
aforesaid  must,  at  the  time  of  filing  his  petition  therefor,  offer 
in  said  State  court  good  and  sufficient  surety  for  his  entering 
in  such  circuit  court,  on  the  first  day  of  its  session,  copies  of 
said  process  against  him,  and  of  all  pAeadings,  depositions, 
testimony,  and  other  proceedings  in  the  cause,  or  in  said 
cases  where  a  citizen  of  the  State  in  which  the  suit  is  brought 
is  a  defendant,  copies  of  all  process,  pleadings,  depositions, 
testimony,  and  other  proceedings  in  the  cause  concerning  or 
affecting  the  petitioner ,  and  also  for  his  there  appearing  and 
entering  special  hail  in  the  cause,  if  special  hail  was  origi- 
nally requisite  therein.  It  shall  thereupon  he  the  duty  of  the 
State  court  to  accept  the  surety  and  to  proceed  no  farther  in 
the  cause  against  the  petitioner,  and  any  hail  that  may  have 
been  originally  taken  shall  he  discharged. 

Rev.  stats.  §  639,  clause  5.  Bo^'D  and  Secueity,  see  post,  §  II  e. 
Duty  of  Court  to  Accept,  see  post,  §  11  h. 


§§  8  a-lU  GROUND  OF  REMOVAL.  104 

§  8  a.  "  Bail,"  means  an  undertaking  for  the  personal 
appearance  of  the  party,  and  does  not  imply  bond  for 
forthcoming  of  attached  property.  "Special  bail"  does 
not  include  delivery  bonds  executed  to  discharge  proper- 
ty from  attachment.! 

1    Ramsey  v.  Coolbaugh,  13  Iowa,  164. 

§  9.  When  the  said  copies  are  entered  as  aforesaid  in  the 
circuit  court,  the  cause  shall  there  proceed  in  the  same  man- 
ner as  if  it  had  been  brought  there  by  original  process,  and 
the  copies  of  pleadings  shall  have  the  same  force  and  effect, 
in  every  respect  and  for  every  purpose,  as  the  original  plead- 
ings ivonld  have  had  by  the  laios  and  practice  of  the  courts 
of  such  State  if  the  cause  had  remained  in  the  State  court. 

Rev.  stats.  §639,  clause  6.  Proceduke  After  Removal,  see 
post,  %lll. 

§  10.  Civil  action,  removal  of.— That  any  suit  of  a 
civil  nature,  at  law  or  in  equity,  noio  pending  or  hereafter 
brought  in  any  State  court,  where  the  matter  in  disptite  ex- 
ceeds, exclusive  of  costs,  the  sum  or  value  of  five  hundred 
dollars,  and  arising  under  the  Constitution  or  laws  of  the 
United  States,  or  treaties  made  or  lohich  shall  be  made  under 
their  authority,  or  in  which  the  United  States  shall  be  plaint- 
iff" or  petitioner ,  or  in  lohich  there  shall  be  a  controversy  be- 
tween citizens  of  different  States,  or  a  controversy  between 
citizens  of  the  same  State  claiming  lands  under  grants  of 
different  States,  or  a  controversy  between  citizens  of  a  State 
and  foreign  states,  citizens,  or  subjects,  either  party  may 
remove  said  suit  into  the  circuit  court  of  the  United  States 
for  the  proper  district ;  and  when  in  any  suit  mentioned  in 
this  section  there  shall  be  a  controversy  which  is  wholly  be- 
tween citizens  of  different  States,  and  ichich  can  be  fully  de- 
termined as  betiveen  them,  then  either  one  or  more  of  the 
plaintiffs  or  defendants  actually  interested .  in  such  contro- 
versy may  remove  said  suit  into  the  circuit  court  of  the 
United  States  for  the  proper  district. 

Act  of  March  3, 1875,  §  2. 


:      I  GKOUND   OF  REMOVAL.  §   10  a 

§  10  a.  Suits  removable.— WIj  ere  the  ground  of 
removal  is  the  subject-matter  aud  uot  citizenship,  the  suit 
must  arise,  in  part  at  least,  out  of  a  controversy  in  regard 
to  some  provision  in  the  Constitution  or  laws  of  Congress ;  i 
in  such  case  it  is  removable,  irrespective  of  citizenship.^ 
It  is  not  enough  that  a  plea  to  the  jurisdiction  of  the  State 
court  has  been  or  may  be  interposed,  involving  constitu- 
tional questions; 3  so  merely  claiming  title  under  an  act 
of  Congress  will  not  authorize  a  removal.^  A  suit  between 
a  land  owner  and  an  incorporated  company  seeking  to 
appropriate  the  land  under  the  law  of  eminent  domain 
may  be  removed;  ^  or  a  bill  in  equity  to  reform  an  insur- 
ance policy; 6  or  a  special  statutory  proceeding  to  confirm 
a  land  title;  "•  or  an  action  by  an  attorney  to  recover  fees 
and  have  the  amount  declared  a  lien  upon  property  sold;  ^ 
or  suits  by  attachment;  ^  or  a  controversy  as  to  the  valid- 
ity of  an  attachment;  1°  or  a  proceeding  by  mandamus  to 
compel  a  company  to  transfer  certificates  of  stock— may  be 
removed. 11  But  a  claim  against  an  estate,  pending  an  ap- 
peal from  the  decision  of  the  commissioners  appointed  by 
the  probate  court,  is  not  removable  under  the  Act  of  1867 ;  i- 
and  a  contest  in  regard  to  the  distribution  of  an  estate  must 
be  removed  before  the  original  trial. i^  A  bill  to  reform  a 
contract  maybe  removed,  i*  A  bill  to  compel  a  trustee 
to  apply  the  income  to  pay  the  debts  of  the  cestui  que  trust, 
where  the  latter  is  a  non-resident,  may  be  removed ;  i^  or  a 
bill  to  obtain  an  accounting  from  a  mortgagor;  i6  or  a  joro- 
ceeding  in  chancery  by  a  jiurchaser  at  a  sheriff's  sale  to 
Lave  the  sale  confirmed;  i"  or  a  bill  to  compel  the  surren- 
der of  a  note  on  the  ground  of  collusion  and  fraud,  though 
a  former  decree  had  been  rendered  in  a  State  court  re- 
quiring him  to  surrender  the  note,  may  be  removed. i^  If 
a  proceeding  to  annul  a  judgment  is  equivalent  to  a  bill 
in  equity  to  set  aside  the  judgment,  the  case  is  remov- 
able.i9  A  suit  in  a  State  court  to  restrain  or  stay  execu- 
tion of  a  judgment  by  seizure  and  sale  of  lands  may  be 
removed.'-*^    The  right  of  removal  of  a  railway  foreclosure 


§   10  a  GROUND   OF  KEMOA'AL.  106 

suit  is  not  affected  by  the  pendency  of  another  suit  in  the 
State  court  by  stockholders  against  the  company.21  An 
injunction  suit  is  a  sufficiently  independent  suit  to  au- 
thorize a  removal.-^  Section  720  of  the  Eevised  Statutes, 
forbidding  Federal  courts  to  enjoin  proceedings  in  State 
courts,  does  not  forbid  the  removal  of  injunction  suits.^s 
To  be  removable,  the  suit  must  be  a  suit  within  the  mean- 
ing of  the  State  law;  -^  and  where  there  is  no  controversy, 
the  suit  cannot  be  removed;  25  as  where  default  has  been 
made.-6  A  suit  against  a  foreign  corporation,  followed 
by  an  attachment,  is  a  suit;  ^'  but  a  motion  under  a  State 
statute  as  to  corporations,  for  execution  against  a  stock- 
holder, is  not  a  suit  at  law  or  in  equity.28 

1  Gold  Washing  etc.  Co.  v.  Keyes,  96  U.  S.  199. 

2  Wilder  v.  rnion  ^•at.  B'k,  12  Ch.  L.  N.  75. 

3  State  V.  Bowen,  8  Rich.  X.  S.  :JS2. 

4  Hoadley  v.  San  Francisco,  94  U.  S.  4;  S.  C.  3  Sawj'.  553;  Trafton 
V.  Nouy:ues,  4  Sawy.  ITS. 

5  Patterson  v.  Boom  Co.  3  Dill.  465;  S.  C.  98  XJ.  S.  403. 

6  Charter  Oak  Co.  v.  Star  Ins.  Co.  6  Blatchf .  208. 

7  Parker  v.  Overman,  18  How.  137;  S.  C.  Hemp.  692. 

8  Pettus  V.  Georgia  R.  R.  Co.  3  Woods,  620. 

9  Barney  v.  Globe  Bank,  5  Blatchf.  107;  Sayles  v.  Northwestern 
Ins.  Co.  2  Curt.  212. 

10  Keith  V.  Levi,  2  Fed.  Rep.  743. 

11  Washington  Imp.  Co.  v.  Kansas  Pac.  R.  Co.  5  Dill.  489. 

12  DuVivier  r.  Hopkins,  116  Mass.  125.  But  see  Pavne  v.  Hook,  7 
Wall.  425;  14  Wall.  2.52;  Craigie  v.  McArthur,  4  DiU.  474;  S.  C.  15  Alb. 
L.  J.  121 ;  4  Cent.  L.  J.  237 ;  9  Ch.  L.  N.  156. 

13  Craigie  v.  McArthur,  4  Dill.  474;  S.  C.  15  Alb.  L.  J.  120:  4  Cent.  L. 
J.  273;  9Ch.  L.N.  156. 

14  Charter  Oak  F.  Ins.  Co.  v.  Star  Ins.  Co.  6  Blatchf.  208. 

15  Broadway  Bank  v.  Adams,  130  Mass.  431. 

16  Upton  V.  New  Jersey  S.  R.  R.  Co.  25  N.  J.  Eq.  372. 

17  Parker  v.  Overman,  18  How.  137. 

18  Hatch  V.  Preston,  1  Biss.  19. 

19  Barrow  v.  Hunton,  99  U.  S.  80. 

20  Watson  v.  Boudurant,  2  AVoods,  166;  S.  C.  3  Cent.  L.  J.  398. 

21  Scott  V.  Clinton  &  S.  R.  R.  Co.  6  Biss.  529;  S.  C.  8  Ch.  L.  N.  210. 

22  Boudurant  v.  Watson,  103  U.  S.  281. 

23  Boudurant  v.  Watson,  103  U.  S.  281. 

24  In  re  Iowa  &  M.  Const.  Co.  6  Fed.  Rep.  799. 

25  Shumway  t;.  Chicago  &  Iowa  R.  Co.  4  Fed.  Eep.  385;  Fasnacht 
V.  Frank,  23  Wall.  416. 


lOT  GROUND  OF  KEMOVAIi.  §  10  b 

26  Berrian  v.  Chetwood,  9  Fed.  Rep.  678. 

27  Barney  v.  Globe  Bank,  5  Blatchf.  107. 

28  Webber  v.  Humphreys.  5  Dill.  223 ;  Smith  v.  St.  Louis  Mut.  L.  Ins. 
Co.  3  Tenn.  Cli.  350;  S.  C.  4  Cent.  L.  J.  563. 

§  10  b.  Suits  not  removable.— A  suit  will  not  be 
removed  unless  the  circuit  court  has  jurisdiction  of  the 
subject-matter,  and  the  power  to  do  substantial  justice 
between  the  parties ;  i  nor  is  a  suit  removable  which  could 
not  have  been  brought  in  the  circuit  court  by  original  pro- 
cess.2  If  the  circuit  court  has  no  jurisdiction  over  a  sin- 
gle count  of  the  declaration,  the  case  cannot  be  removed.^ 
A  case  of  condemnation  of  property  is  not  removable 
where  the  State  law  vests  title  in  a  municipal  corpo- 
ration, and  provides  for  the  assessment  of  damages.'* 
Ancillary  suits  are  not  removable.^  A  bill  filed  to  va- 
cate a  judgment  cannot  be  removed. ^  Illegality  of  the 
final  process  of  a  State  court  is  not  such  a  suit  as  may  be 
removed,"  or  if  an  intervenor  seeks  to  have  the  question 
of  title  determined  under  an  execution  issued  out  of  a 
State  court;  8  or  where  a  stranger  seeks  to  enjoin  the  sale 
of  property  under  execution ;  9  or  a  foreign  citizen  seeks  to 
enjoin  an  execution.io  A  merely  ancillary  proceeding  by 
a  third  person,  to  enjoin  a  seizure  and  sale  under  a  judg- 
ment, is  not  removable;  11  so  the  claim  of  a  garnishee  is 
ancillary,  and  not  removable.i^  A  petition  merely  ancil- 
lary to  an  ejectment  suit  already  passed  to  judgment  is 
not  removable.i-3  If  a  counter-claim  is  filed  in  a  suit 
against  the  citizen  of  the  State  where  suit  is  brought,  it 
cannot  be  removed.i*  The  fact  that  a  cross-bill  has  been 
filed,  setting  up  the  same  matters  put  in  issue  by  the 
original  bill  and  answer,  cannot  affect  the  jurisdiction,  as 
it  is  but  a  mere  appendage  to  the  original  bill  1° — a  mere 
auxiliary  to  the  original  bin;is  a  defense  in  the  suit,i7 
constituting,  with  the  original  bill,  but  one  suit.is  A  bill 
to  establish  a  resulting  trust  on  land  cannot  be  removed 
unless  the  mortgagor  is  a  citizen  of  the  same  State  as  the 
plaintiff.i9  A  foreclosure  suit  is  not  removable  on  the 
application  of  a  subsequent  incumbrancer.2o 


§  10  C  GROUXD   OR  REMOVAL,  108 

1  Rogers  v.  Rogers,  1  Paige,  183. 

2  Watson  v.  Bondurant,  30  La.  An.  1;  Denniiion  v.  Potts,  19  Miss. 
36;  Goodrich  r.  Hiuiton,2;t  La.  Au.  372;  Contra:  Bliven  «.  New  Eng- 
land Screw  Co.  3  Blatclif.  112. 

3  Gale  V.  Babcock.  4  Wash.  C.  C.  344. 

4  White  V.  The  City,  S  Phila.  241. 

5  Ranlett  v.  Collier  White  Lead  Co.  30  La.  An.  pt.  1,  56;  Goodrich  v. 
Hunton,  29  La.  An.  372;  Claflin  v.  McDermott,  12  Fed.  Rep.  375;  The 
Cortes  Co.  v.  Thanuhauser,  i)  Fed.  Rep.  226. 

6  Barrow  v.  Hunton.  99  U.  S.  80;  Goodrich  v.  Hunton,  29  La.  An. 
372;  Ranlett  v.  Collier  White  bead  Co.  30  La.  An.  pt.  1,  56, 

7  Besser  v.  Munford.  63  Ga.  446. 

8  Bank  v.  Turnbull,  16  Wall.  190;  Harrison  v.  Shorter,  59  Ga.  512. 

9  Watson  v.  Boudurant,  30  La.  An.  1 ;  hut  see  S.  C.  2  Wood,  166. 

10  Goodrich  r.  Hunton,  20  La.  An.  372;  Rogers  ».  Rogers,  1  Paige, 
183;  Nye  r.  Nightingale,  6  R.  1.439. 

11  Watson  V.  Boudurant,  30  La.  An.  1. 

12  Weeks  v.  Billings,  55  N.  H,  371 ;  Pratt  v.  Albright,  9  Fed.  Rep.  636. 

13  Chapman  v.  Barger,  4  Dill.  557. 

14  West  V.  Aurora,  6  Wall.  139. 

15  Donohoe  v.  Mariposa  Land  &  M.  Co.  6  Cent.  L.  J.  487. 5  Sawy  163. 

16  Rubber  Co.  v.  Goodvear,  9  Wall.  809;  Cross  v.  Del  Valle,  1  Wall.  5; 
Field  r.  Schiefielin,  7  Johns.  Ch.  252. 

17  Gallatin  v.  Irwin,  Hopk.  Ch.  59. 

IS    Ayer  v.  Carver,  17  How.  595;  Slason  v.  Wright,  14  Vt,  210. 

19  Chester  v.  Chester,  7  Fed.  Rep.  1. 

20  Donohoe  v.  Mariposa  L.  &  M.  Co,  6  Cent.  L.  J.  487.5  Sawy  163, 

§  10  c.  Actions  removable.— The  fact  that  the 
claim  is  legal,  as  distinguised  from  equitable,  has  no 
bearing  on  the  question  of  the  right  of  removal.  ^  The 
right  of  removal  is  confined  to  civil  actions,^  and  does  not 
extend  to  criminal  prosecutions.^  So  an  action  of  debt 
upon  a  recognizance  by  a  State  against  an  alien  cannot 
be  removed,  as  it  is  of  a  criminal  nature;'*  and  an  action 
of  tort  against  several  defendants  for  a  conspiracy  cannot 
be  removed  by  part  of  them  under  the  Acts  of  1866  or 
1867 ;  5  nor  under  the  Act  of  1875.6  An  action  of  ejectment 
is  removable,"  or  an  action  of  replevin.s  An  action  com- 
menced by  attachment  is  removable,  though  defendant 
disputes  the  attachment  only;  9  so  of  a  foreign  attach- 
ment.io  A  case  instituted  to  recover  damages  for  death 
caused  by  a  wrongful  act  is  removable,!^  or  an  appeal  to  a 
State  court  from  an  assessment  for  laud  taken  under  the 


109  GROUND  OF  REMOVAL.  §  10  d 

law  of  eminent  domain; i-  or  a  proceeding  by  strangers  to 
an  estate  against  a  devisee  to  annul  a  will;  13  or  a  claim 
on  appeal  against  a  public  corporation. i*  An  action 
brought  to  establish  a  lost  will  is  removable;  i^  or  a  suit 
to  annul  a  will,  or  to  recall  a  decree  admitting  it  to  pro- 
bate ;16  but  a  proceeding  for  the  probate  of  a  will,i7  or  for 
the  caveat  of  a  will,  cannot  be  removed;  i^  or  a  case  on 
appeal  for  the  establishment  of  claims  against  deceased.i^ 
A  mandamus  is  not  removable  on  a  plea  which  raises  the 
issue  of  title  to  an  office,20  nor  is  an  action  in  the  nature 
of  a  quo  warranto.'^''- 

1  Ketchum  v.  Black  River  Lumber  Co.  4  Fed.  Rep.  139. 

2  Resp.  V.  Corbet,  3  Dall.  467;  Green  v.  U.  S.  9  Wall.  653;  State  v. 
Grand  Trunk  Railway,  3  Fed.  Rep.  887. 

3  Risonr.  Cribbs,  1  Dill.  184;  Greene.  U.  S.  9  Wall.  655;  State  v. 
Grand  Trunk  K.  Co.  3  Fed.  Rep.  8S7. 

4  Resp.  V.  Corbet,  3  Dall.  467. 

5  Ex  parte  Andrews,  40  Ala.  639. 

6  Van  Brunt  v.  Corbin.  14  Blatchf.  496. 

7  Bigelow  V.  Forrest,  9  Wall.  339;  Allin  v.  Robinson,  1  Dill.  119:  Ex 
parte  Turner,  3  Wall.  Jr.  258;  Ex  parte  Girard,  3  Wall.  .Ir.  263;  Torney 
V.  Beardsley,  4  Wash.  C.  C.  24J;  Gale  w.  Babcock,  4  Wash.  C.  C.  344; 
Martin  v.  Snowden,  18  Gratt.  100. 

8  Beecher  v.  Gillett,  1  Dill.  308;  Dennistoun  v.  Draper,  5  Blatchf. 
336. 

9  Keith  v.  Levi,  2  Fed.  Rep.  743. 

10  Barney  v.  Globe  Bank,  5  Blatchf.  107;  Ramsey  v.  Coolbaugh,  13 
Iowa,  164. 

11  Railway  Co.  v.  Whitton,  13  Wall.  270;  Davies  v.  Lathrop,  12  Fed. 
Rep.  353. 

12  Boom  Co.  V.  Patterson,  98  U.  S.  403;  Warren  v.  Wisconsin  V.  R. 
R.  Co.  6  Biss.  425. 

13  Gaines  i-.  Fucntes,  92  U.  S.  10. 

14  Gumee  v.  Brunswick,  1  Hughes,  270. 

15  Southworth  r.  Adams,  11  The  Reporter,  46. 

16  Gaines  r.  Fuentes,  92  U.  S.  10. 

17  Hargroves  v.  Redd.  43  Ga.  142;  Tibbatts  r.  Berry,  10  Mon.  B.  473; 
In  re  Frazer,  18  Alb.  L.  J.  353;  Fouvergne  v.  New  Orleans,  18  How.  470. 

18  Hargroves  v.  Redd,  43  Ga.  142. 

19  Du  Vivier  v.  Hopkins,  116  Mass.  125. 

20  State  v.  Johnson,  29  La.  An.  399. 

21  State  V.  Bowen,  8  Rich.  S.  C.  382. 

§  10  d.    Suits  against  aliens.— Suits  against  an  alien 
under  the  Judiciary  Act  include  only  suits  between  an 
Desty  Removal.— lO. 


§   10  e  OKOUND   OF   REMOVAL.  110 

alien  and  a  citizen  of  the  State;  i  there  can  be  no  removal 
if  i>laintiff  is  an  alien ;-2  or  if  both  parties  are  aliens; 3  and 
under  Revised  Statutes,  §  G39,  if  a  citizen  of  another  State 
is  one  of  the  defendants  with  an  alien,  the  case  cannot  be 
removed.'*  If  an  alien  has  merely  filed  his  declaration  of 
intention  to  become  a  citizen,  he  is  still  an  alien. 5  Resi- 
dent unnaturalized  foreigners  may  remove  causes  to  the 
Federal  court,  although  by  State  laws  they  may  vote  at 
elections,  or  hold  office  under  the  State  government. ^  A 
foreign  corporation  is  an  alien,  and  may  remove  the  suit." 
A  suit  brought  bj"  a  citizen  of  another  State  against  a  cit- 
izen of  England  is  removable.^  To  give  the  right  to  a  re- 
moval, all  on  one  side  must  be  citizens,  and  all  on  the 
other  side  aliens. 9  An  alien  defendant  may  remove  an 
action  brought  against  him  by  the  State. ^^ 

1  Mossman  v.  Higginson,  4  Dall.  12;  Hodgson  v.  Bowerbank,  5 
Crancli,  363;  Kesp.  v.  Cobbet,  3  Dall.  467. 

2  Galvin  v.  Boutwell,  9  Blatchf.  470;  Sawyer  r.  S.  M.  Ins.  Co.  14 
Blatclif.  451;  Barrowcliffe  v.  La  Caisse  Generale,  53  How.  Pr.  131, 

3  Orosco  V.  Gagliardo,  22  Cal.  83. 

4  Denniston  v.  Potts,  19  Miss.  36. 

5  Lanz  v.  Randall,  4  Dill.  425;  Orosco  v.  Gagliardo,  22  Cal.  83. 

6  Lanz  v.  Randall,  4  Dill.  425;  D'Wolf  v.  Raband,  1  Peters,  476;  S.  C. 
Paine,  5^0;  Case  r.  Clarke,  5  Mason,  70;  Cooper  v.  Galbrartli,  3  Wash. 
C.  C.  546;  Sbelton  v.  Tiffin,  6  How.  163. 

7  Terry  v.  Imperial  P.  Ins.  Co.  3  Dill.  408. 

8  Eureka  Consol.  M.  Co.  v.  The  Richmond  Consol.  M.  Co.  2  Fed. 
Rep.  829.    Contra,  under  §  639,  Denniston  v.  Potts.  19  Miss.  36. 

9  Dannmeyer  v.  Coleman,  11  Fed.  Rep.  97. 

10  Stater.  Lewis,  12  Fed.  Rep.  1.  Contra:  Gale  v.  Babcock,  4  "Wash. 
C.  C.  344;  Resp.  v.  Corbet,  3  Dall.  467. 

§  10  e.  By  amount  in  controversy.— The  claim  of 
the  plaintiff,  and  not  the  counter-claim  of  the  defendant, 
should  fix  the  amount  in  dispute;  i  and  the  petition  should 
affirmatively  state  the  amount; 2  and  if  the  amount  in 
dispute  exceeds  $500,  exclusive  of  costs,  at  the  time  of  the 
application,  the  case  is  removable,  although  the  requisite 
amount  did  not  exist  when  the  suit  was  commenced.^ 
The  amount  claimed  in  the  body  of  the  complaint  must 
be  looked  into,  and  not  alone  the  prayer  for  judgment  ;4 


Ill  GROU>'D   OF   KEMOVAF..  §  10  f 

for  where  the  claim  is  for  an  amount  not  fixed,  and  which 
can  be  ascertained  only  by  triaf,  plaintiff  may  lay  dam- 
ages at  any  amount. ^  The  jurisdictional  limitation  as  to 
the  amount  in  controversy  has  reference  to  the  sum  in 
dispute  between  the  plaintiff  and  the  defendant.^  Where 
a  counter-claim  was  interposed  claiming  damages  for 
fraudulent  representations  in  regard  to  the  subject-matter, 
to  an  amount  more  than  §500  in  excess  of  plaintiff's  claim, 
the  suit  is  removable."  If  the  amount  claimed  is  over 
five  hundred  dollars,  the  State  court  cannot  permit  the 
plaintiff  to  reduce  below  that  amount  after  defendant 
has  filed  a  petition  and  complied  with  the  requirements 
of  law. 8 

1  Falls  Wire  Manuf'g  Co.  r.  Broderick,  6  Fed.  Rep.  654;  Contra: 
Clarkson  v.  Manson,  4  Fed.  Hep.  257. 

2  Keith  v.  Levi,  2  Fed.  Rep.  743. 

3  Clarkson  v.  Manson,  4  Fed.  Rep.  257 ;  McGinnlty  v.  Wliite,  3  Dill. 
350. 

4  Culver  v.  Crawford  Co.  4  Dill.  239. 

5  Culver  v.  Crawford  Co.  4  Dill.  239. 

6  N.  Y.  Silk  Manuf'g  Co.  r.  Second  Xat.  Bank,  10  Fed.  Rep.  204. 

7  Clarkson  r.  Manson,  18  Blatchf.  443. 4  Fed.  Rep.  257. 

8  Kanouse  v.  Martin,  15  How.  198;  Stanley  v.  Chicago,  R.  I.  &  P.  R. 
R.  Co.  62  Mo.  5u8;  Beery  v.  Same,  64  Mo.  533.  Contra:  People  v.  Judg- 
es, 2  Denio,  197. 

§  10  f.  Cases  arising  under  the  Constitution, 
la^ws,  or  treaties. — Wlienever  tlie  decision  of  a  case  de- 
pends upon  the  construction  of  the  Constitution  of  tlie 
United  States,  an  act  of  Congress,  or  treaty,  the  case  may 
be  removed  if  the  matter  in  dispute  exceeds  SoOO.i  A 
suit  arises  whenever,  upon  the  whole  record,  there  is  a 
controversy  involviug  the  construction  of  either; 2  but 
they  must  be  directly  and  not  incidentally  called  in  ques- 
tion; 3  and  if  a  suit  involves  a  Federal  question,  it  may  be 
removed,  although  other  questions  founded  on  principles 
of  general  law  may  be  involved  ;4  and  although  a  State  is 
plaintiff,^  and  the  citizenship  of  the  parties  has  nothing 
to  do  with  the  question. ^  If  the  plaintiff  is  a  corporation, 
created  by  an  Act  of  Congress,  the  case  arises  under  the 


§  10  f  GROUND   OF  REMOVAL.  112 

laws  of  Congress;'  but  it  is  otherwise  in  the  case  of  a 
national  bank.8  Cases  involving  questions  under  the 
bankrupt  act  are  removable ;  ^  or  cases  under  the  home- 
stead laws  of  the  United  States;  i<^  or  under  the  act  of 
Congress  respecting  customs  and  duties  ;ii  but  the  er- 
roneous levy  of  State  taxes  does  not  involve  a  Federal 
question. 12  A  suit  begun  by  a  defeated  candidate  for  a 
State  oflSce,  to  try  his  right  to  the  office,  does  not  involve 
a  Federal  question.i^  So  where  the  State  supreme  court 
in  the  State  where  action  is  brought  refuses  to  make  the 
construction  of  the  laws  of  another  State  decided  by  its 
supreme  court  the  rule  of  decision,  it  does  not  involve  a 
Federal  question;  i*  so  a  case  brought  to  enforce  the  con- 
tract for  a  royalty  Is  not  a  case  arising  under  the  patent 
laws,  unless  brought  against  a  citizen  of  another  State 
praying  for  an  injunction. is  Actions  upon  adverse  pro- 
ceedings to  iprevent  the  issuance  of  a  patent  for  a  mining 
claim  are  removable;  i^  but  where  the  only  question  is  as 
to  the  local  laws,  rules,  and  regulations,  the  case  is  not 
removable.i"  Cases  arising  under  tlie  laws  of  the  United 
States  are  such  as  grow  out  of  the  legislation  of  Congress, 
whether  they  constitute  the  right  or  jjrlvilege,  care  or 
protection,  or  defense  of  a  party,  in  whole  or  in  part.i^ 
A  case  relating  to  the  title  to  land  is  not  one  of  Federal 
jurisdiction  where  rights  depend  on  State  statutes  or  the 
general  principles  of  law;i'->  but  only  such  as  depend  on  a 
disputed  construction  of  the  Constitution  and  laws  of  the 
United  States  ;  20  so  a  party  who  claims  land  under  an  act  of 
Congress,  imposing  a  direct  tax,  may  remove  an  ejecmeut 
suit;'-i  but  he  cannot  remove  if  he  claims  under  a  grant 
from  the  State  in  which  suit  is  pending  at  the  time.22 
Where  in  an  action  of  trespass  the  defendant  justifies  the 
alleged  trespass  under  authority  of  a  court  and  the  laws 
of  the  United  States,  the  cause  is  removable.^^ 

1  Gold  Washing  &  ^Y.  Co.  v.  Keyes,  96  U.  S.  199;  Woolridge  v.  Mc- 
Kenna,  8  Fed.  Rep.  650;  Connor  v.  Scott,  4  Dill.  242;  New  Orleans,  M.  & 
T.  R.  Co.  V.  Mississippi,  102  U.  S.  135. 

2  Cohens  v.  Virginia,  6  Wlieat.  264;  Mavor  of  N.  Y.  v.  Cooper,  6 
Wall.  247 :  Tennesee  v.  Davis,  100  U.  S.  275;  Van  Allen  v.  Atchison,  C.  & 


113  GROUND   OF  REMOVAL.  §   10  g 

P.  R.  Co.  3  Fed.  Rep.  545;  Hatch  r.  Wallamet  Iron  B.  Co.  11  The  Re- 
porter, N.  S.  630;  N.  O.  etc.  Railroad  v.  Mississippi,  102  U.  S.  135; 
Gold  AYash.  &  W.  Co.  v.  Keyes,  96  U.  S.  201;  Connor  v.  State,  4  Dill. 
242;  Woolridse  v.  McKenna,  8  Fed.  Rep.  650. 

3  State  V.  Bowen,  8  Rich.  N.  S.  382. 

4  Connor  v.  Scott,  4  Dill.  242. 

5  New  Orleans,  M.  &  T.  R.  Co.  v.  State,  13  Ch.  L.  N.  93. 

6  "Wilder  v.  Union  Nat.  Bank,  12  Ch.  L.  N.  75. 

7  Osborn  v.  Bank  of  U.  S.  9  Wheat.  733;  U.  P.  R.  R.  Co.  v.  Macomo, 
1  Fed.  Rep. 799:  Gold  Wash.  Co.  r.  Keyes,  96  U.  S.  199,  distinguished; 
Railroad  Company  v.  Mississippi,  lOJ  (J.  S.  135. 

8  Petitionr.  Noble,7  Biss.  449. 

9  Connor  v.  Scott,  4  Dill.  242;  Houser  v.  Clayton,  3  Woods,  273; 
Heherti'.  Lefevre,31  La.  An.  3o3;  Paysonr.  Dietz,  5  Ch.  L.  N.  434; 
Wehl  V.  Wald,  18  Blatchf.  163;  Woolrid-e  v.  McKenna,  8  Fed.  Rep.  650. 

10  Van  Allen  r.  Atchison,  C.  &  P.  R.  Co.  3  Fed.  Rep.  545. 

11  Orner  v.  Saunders,  3  Dill.  284. 

12  Berger  v.  Douglas  Co.  5  Fed.  Rep.  23. 

13  Dubuclet  r.  State,  2  Morr.  Trans.  559. 

14  Wiggins  v.  Chicago  &  A.  R.  Co.  11  Fed.  Rep.  381. 

15  Root  V.  Lake  Shore  &  Mich.  S.  R.  Co.  11  Fed.  Rep.  349. 

16  Frank.  G.  &  S.  M.  Co.  v.  Larimer  M.  &  S.  Co.  12  Fed.  Rep. . 

17  Traf ton  v.  Nougues,  4  Sawy.  178. 

18  Railroad  Co.  v.  Mississippi,  102  U.  S.  135. 

19  McStay  v.  Friedman,  92  U.  S.  723;  Romle  -r.  Cassanova,  91  U.  S. 
380;  Traf  ton  v.  Nougues,  4  Sawy.  178. 

20  Trafton  v.  Nougues,  4  Sawy.  178. 

21  Peyton  r.  Bliss,  1  Woolw.  170. 

22  Shepherd  v.  Young,  1  Mon.  203. 

23  Houser  v.  Clayton,  3  Woods,  273. 

§  10  g.  Suits  pending.— By  the  provisions  of  tbis  sec- 
tion, a  cause  pending  when  the  act  was  passed  may  be 
removed  "  at  or  before  the  first  term  at  wliich  said  cause 
could  be  first  tried,"  after  tlie  passage  of  the  act;  i  but  if 
a  trial  had  been  had  after  the  passage  of  the  act,  it  cannot 
be  made,  although  the  verdict  had  been  set  aside,  and  a 
new  trial  granted.'^  The  authority  last  cited  distinguishes 
the  Act  of  18G7,  which  says  "at  any  time  before  the  first 
hearing  or  trial,"  the  Act  of  1875  saying  "before  or  at  the 
term  in  which  a  trial  could  be  had."  The  words  of  the 
act,  "then  pending,"  mean  the  first  trial  after  the  right 
of  removal  attaches,  subsequently  to  the  passage  of  the 
act:  3  and  the  application  is  in  time  if  made  at  the  first 


§   10  ll  GROUND   OF   REMOVAX.  114 

term  of  the  court  thereafter.^  A  case  pending  in  the 
State  supreme  court  at  the  time  of  the  passage  of  the  act, 
and  wliich  was  remanded  for  further  proceedings,  stands 
like  a  new  cause,  and  the  right  of  removal  may  be  claimed 
at  or  before  the  term  at  which  it  can  be  tried.^  Causes 
which  might  have  been  tried  before  but  were  not,  and 
which  were  pending  for  trial  when  the  act  went  into  oi> 
eration,  as  well  as  causes  once  tried  but  in  which  a  new 
trial  had  been  ordered,  and  which  were  j^ending  ready 
for  trial  when  the  act  took  effect,  are  removable  if  the 
application  therefor  be  made  within  the  time  required  in 
the  act;  c  but  where  a  cause  was  pending  when  the  Act  of 
1875  was  passed,  and  was  tried  in  1878,  and  afterwards, 
on  appeal,  a  new  trial  was  granted,  a  petition  for  removal 
thereafter  was  not  in  time."  The  transfer  of  a  cause  from 
the  State  to  a  Federal  court  does  not  vacate  what  has  been 
done  in  the  State  court  previous  to  removal;  what  lias 
been  decided  in  the  State  court  is  res  adjudicata,  and 
cannot  be  reviewed.  ^ 

1  Andrews  v.  Garrett,  1  Flippen,  445. 

2  Young  V.  Andes  Ins.  Co.  1  Flippen,  599. 

3  Hoadley  v.  San  Francisco,  3  Sawy.  553. 

4  Removal  Cases,  100  U.  S.  457;  Baker  v.  Peterson,  4  Dill.  562; 
Hoadley  v.  San  Francisco,  3  Savory.  553;  Andrews  v.  Garrett,  2  Cent.  L. 
J. 797;  M.  <fc  M.Nat.  Bankr.  Wlieeler,  13Blatclif.218;  Crane  r.  lieeder, 
15  Alb.  L.  J.  103. 

5  Pettilon  V.  Noble,  7  Biss.  449. 

6  Crane  v.  Reeder,15  Alb.  L.  J.  103;  U.  S.  Circuit  Court  denying  S. 
C.  23  Mich.  527 ;  Andrews  r.  Garrett.  3  Cent.  L.  J.  797 ;  S.  C.  Cli.  L.  N.  132 ; 
Mer.  &  Manuf.  Bankf.  Wlieeler,  3  Cent.  L.  J.  13;  Hoadlev  v.  San  Fran- 
cisco. 8  Ch.  L.  N.  134.  See  Sims  v.  Sims,  17  Blatchf.  369;  Ames  v.  Colo. 
Cent.  It.  K.  Co.  4  DiU.  251;  S.  C.  4  Cent.  L.  J.  199. 

7  Newdecker  v.  Eosenbaum,  11  The  Reporter,  254. 

8  King  V.  Worthington,  25  Alb.  L.  J.  15. 

§  10  h.  Ancillary  proceedings.— A  suit  brought  to 
enjoin  a  suit  at  law  is  only  ancillary ;  i  so  jiroceedings  in 
garnishment  are  ancillary. 2  Proceedings  in  garnishment 
process  are  ancillary,  and  garnishees  are  not  parties  to 
the  suit.3  The  rights  of  applying  creditors  are  merely 
incidental  to  the  action,  and  the  court  will  exercise  juris- 


]15  GROUND   OF  REMOVAL.  §101 

diction  over  them.^  If  supplementary  proceedings  are 
inseparably  connected  with  the  original  judgment  or  de- 
cree, they  cannot  be  removed;  but  it  is  otherwise  where 
they  are  a  mere  mode  of  procedure  or  relief,  involving  an 
independent  controversy  with  new  or  different  parties.s 
AVhere  judgment  was  obtained  against  three  defendants 
jointly,  one  of  whom  was  a  resident,  to  show  cause  why 
they  should  not  be  bound  by  the  judgment,  it  is  not  a  new 
action,  but  further  proceedings  in  an  old  one.*^  If  a  per- 
son has  only  an  incidental  interest  growing  out  of  the 
litigation,  he  cannot  remove." 

1  The  Cortes  Co.  v.  Thannhauser.  9  Fed.  Rep.  2J6;  Chittenden  v. 
State,  9  Fed.  liep.  I'Jii;  Clark  v.  Opdyke,  17  N.  Y.  Super.  383. 

2  Pratt  r.  Albright,  9  Fed.  Kep.  634. 

3  Cook  r.  AVhitney,  3  Woods,  715. 

4  X.  Y.  Silk  Manuf.  Co.  r.  Second  Nat.  Bank,  10  Fed.  Kep.  204. 

5  Bufordr.  Strother.  lit  Fed.  Kep.  43.';.  See  Webber  v.  Humphreys, 
5  Dill.  2J3;  Chapman  v.  Barj,'cr,  4  Dill.  557. 

6  Fairehild  r .  Durand ,  8  Abb.  Pr.  305. 

7  Ellis  V.  Sisson,  11  Fed.  Rep.  353. 

§  10  i.  Controversy  between  parties.— The  stat- 
ute contemplates  a  controversy  in  a  suit,  and  not  a  mere 
suit  in  which  there  is  no  defense  ;i  as  where  default  has 
been  entered; 2  but  where  nothing  to  contradict  appears 
of  record,  the  court  will  presume  that  there  is  a  contro- 
versy between  the  parties. ^  In  determining  whether  a 
suit  involves  a  controversy  between  citizens  of  different 
States,  the  condition  of  the  controversy  when  the  petition 
is  tiled  is  alone  to  be  considered."*  A  controversy  is  in- 
volved whenever  any  jiroperty  or  claim  capable  of  pecu- 
niary estimation  is  the  subject  of  litigation,  and  is 
presented  for  judicial  determination.^  "Where  a  negli- 
gent act  is  one  and  indivisible,  there  arises  but  one  cause 
of  action,  and  the  plaintiffs  are  joint  parties  in  interest, 
there  is  not  a  controversy  wholly  between  citizens  of 
different  States,  so  as  to  enable  one  of  the  plaintiffs,  a 
non-resident,  to  remove  the  cause. "^  A  distinct  and  sepa- 
rate interest  is  in  no  sense  and  under  no  circumstances 


§  10  i  GROrND  OF  REMOVAL.  116 

connected  with  that  of  others."  A  controversy  between 
a  non-resident  bond  holder  on  one  side  and  the  county  au- 
thorities and  tax  payers  on  the  other  is  removable. §  The 
right  of  removal  does  not  exist  after  a  stipulation  filed  in 
the  State  court  admitting  the  claim. 9  Where  there  is  a 
controversy  between  citizens  of  different  States,  and  the 
matter  in  dispute  is  sufficient,  it  is  removable,  although 
the  case  is  not  one  arising  under  the  Constitution  and 
laws  or  treaties  of  the  United  States  ;W  but  the  whole 
controversy  must  be  removed. ^i  It  cannot  be  removed 
as  to  one  and  left  jDending  as  to  another.i^  Non-residents 
cannot  be  deprived  of  their  right  to  have  controversies 
with  citizens  of  other  States  determined  in  the  Federal 
courts,  and  tlie  circuit  court  cannot  relinquish  its  juris- 
diction by  transferring  the  case  to  the  State  court;  i3  so 
as  to  attachment  suits. ^^  Where  a  non-resident  sued  out 
attachments  against  a  citizen  of  the  State,  which  were 
followed  by  other  attachments  in  the  State  court,  the 
non-resident  is  entitled  to  remove.  ^5  Where  in  one  suit 
there  are  two  distinct  and  separate  controversies — one 
between  citizens  of  the  same  State,  and  the  other  be- 
tween citizens  of  different  States— the  Federal  court  has 
no  jurisdiction. 16 

1  Stanbrough  v.  Griffin,  52  Iowa,  112. 

2  Berrian  v.  Chetwood,  9  Fed.  Eep.  678;  McCallou  v.  "Waterman,  1 
F]ippeu,651. 

3  Bailey  i-.  Anier.  Cent.  Ins.  Co.  13  The  Reporter,  571. 

4  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  McComb,  17  Blatchf.  371. 

5  Gaines  v.  Fuentes,  92  U.  S.  510;  Lee  v.  Lee,  8  Peters,  44. 

6  First  Presb.  Soc.  v.  Goodrich  T.  Co.  7  Fed.  Rep.  257. 

7  Smith  V.  Rines,  2  Sum.  338. 

8  Harter  Township  v.  Kernochau,  2  Mom  Trans.  235. 

9  Keith  v.  Levi,  2  Fed.  Rep.  743. 

10  Low  V.  "Waj-ne  Bank,  14  Blackf.  449. 

11  Ellis  V.  Sissou,  11  Fed.  Rep.  353. 

12  Chambers  v.  Holland,  11  Fed.  Rep.  210. 

13  Bates  v.  Days,  11  Fed.  Rep.  529. 

14  Keith  V.  Levi,  2  Fed.  Rep.  743. 

15  Bates  V.  Days,  11  Fed.  Rep.  529. 

16  Iowa  Home  Co.  v.  Des  Moines  etc.  R.  R.  Co.  13  The  Reporter. 
385;  distmguishing  Barney  v.  Latham,  11  The  Reporter,  721. 


117  GROUXD   OF   REMOVAL.  §  10  j 

§  10  j.  Citizenship.— Under  this  section  there  must 
be  a  controversy  between  citizens  of  different  States  when 
the  petition  is  filed,  i  as  well  as  at  the  commencement  of 
the  suit; 2  and  all  the  parties  on  one  side  must  be  of  dif- 
ferent citizenship  from  all  the  parties  on  the  other  side;  ^ 
and  one  of  the  parties  must  be  a  citizen  of  the  State  where 
suit  is  brought;  ^  for  if  plaintiff  is  an  alien  the  defendant 
cannot  remove. ^  Under  the  first  clause  of  the  section 
there  must  be  a  single  controversy  in  which  all  the  par- 
ties on  the  moving  side  are  necessary  parties,  when  all 
must  unite; 6  all  except  those  who  are  merely  nominal 
parties; "  and  the  partj^  opposed  to  the  petition  must  be  a 
citizen  of  the  State  where  suit  is  brought. ^  The  circuit 
court,  under  this  clause,  has  no  jurisdiction  between  a 
citizen  of  one  State  and  citizens  of  the  same  State  and 
another  State. 9  A  case  cannot  be  removed  when  a  part 
of  the  defendants  are  citizens  of  the  State  where  the  suit 
is  brought.^  So  a  suit  by  two  citizens  of  a  State  against 
several  defendants,  one  a  citizen  of  same  State  with 
plaintiffs  as  partner,  is  not  removable;  n  nor  is  it  remova- 
ble under  the  second  clause,  as  there  is  not  a  separate 
controversy  between  the  resident  plaintiffs  and  the  non- 
resident defendants. 12  In  a  suit  between  a  foreign  citi- 
zen and  citizens  of  various  States  the  removal  was 
allowed  where  all  but  one  of  the  defendants  applied.  13 

1  Chicasro,  St.  L.  &  N.  O.  R.  Co.  v.  McComb,  17  Blatchf.  371. 
Curtiu  r.  Decker,  5  Fed.  Rep.  385;  Beebe  r.  Cheeney,  11  The  Report- 
er, 364.  see  Removal  Cases,  ICO  U.  S.  457;  Bruce  v.  Gibson,  9  Fed.  Rep. 
540. 

2  Bruce  v.  Gibson,  9  Fed.  Rep.  540;  Kaeiser  v.  Illinois  Central 
R.  Co.  6  Fed.  Rep.  1.    Contra:  Curtinu.  Decker,  5  Fed.  Rep.  385. 

3  Hyde  v.  Ruble,  3  Morr.  Trans.  516;  Blake  v.  McKim,  103  U.  S. 
336;  The  Removal  Cases.  100  U.  S.  457;  Burke  v.  Flood,  G  Sawy.  220. 
See  Beery  v.  Irick.  22  Giatt.  4S4;  Fisk  v.  Chicago,  R.  I.  &  P.  R.  R.  Co.  53 
Barb.  472;  Brvautf.  Scott.  07  X.  C.  391;  Dart  i-.  Walker,  43  How.  Pr. 
29:  Tavlor  v.  Rockefeller,  25  Pitts.  L.  J.  137;  Hazard  v.  Durant,  9  R.  I. 
602;  Martin  v.  Coons,  24  La.  An.  169. 

4  Hurst  V.  Railroad  Co.  93  U  S.  71;  Insurance  Co.  v.  Francis,  II 
Wall.  210;  Amer.  Bible  Soci.  v.  Grove,  101  U.  S.  610. 

5  Knickerbocker  L.  Ins.  Co.  v.  Gerbach,  70  Pa.  St.  150. 

6  Buckman  v.  Palisades  Land  Co.  1  Fed.  Rep.  367;  Ruble  v.  Hyde,  3 
Fed.  Rep.  330;  Smith  v.  McKay,  4  Fed.  Rep.  353;  Smith  v.  Horton,7 


§  10   k  GROUND   OF  REMOVAL,.  118 

Fed.  Rep.  270;  Removal  Cases,  100  U.  S.  457;  Nat.  Bankv.  Dodge,  11  The 
Keporter.  641;  3Iaine  r.  Oilman,  11  Fed.  Rep.  214;  Chicago,  St.  L.  &  N. 
O.  K.  Co.  V.  McComb,  17  Blatchf.371.   See  George  v.PUcher,  28  Gratt.  299. 

7  Waggoner  v.  Cheek,  2  Dill.  560;  Bixby  v.  Couse,  8  Blatchf.  73; 
Ervant  r.  Rich,  106 Mass.  180;  Merwin  v.  Wexel,  49  How.  Pr.  115;  George 
r.  Piloher,  28  Gratt.  2!J9;  Cooke  v.  State  Nat.  Bk,  52  N.  Y.  96;  W.  A.  &  G. 
R.  Co.  r.  A.  &  W.  H.  Co.  19  Gratt.  592;  New  Jersey  Zinc  Co.  v.  Trotter, 
23  Int.  Rev.  Rec.  410. 

8  Amer.  Bible  Society  v.  Grove,  101  U.  S.  610;  S.  C.  21  Alb.  L.  J.  155. 

9  Karns  v.  Atlantic  &  O.  R.  Co.  10  Fed.  Rep.  309.  Nor  of  a  suit 
brought  by  an  alien  against  an  alien:  Sawyer  V.Switzerland  M.  Ins. 
Co.  14  Blatchf.  451;  Barrowcliife  v.  La  Caisse  Generale,  58  How.  Pr. 
131 ;  Orosco  v.  Gagliardo,  22  Cal.  83. 

10  Hanover  F.  Ins.  Co.  v.  Keogh,  7  Fed.  Rep.  764;  Sewing  Mach. 
Cos.'  Cas.  18  Wall.  553;  S.  C.  110  Mass.  70;  Vannevar  v.  Bryant,  21  Wall. 
41;  Bixby  I'.  Couse,  8  Blatchf.  73;  Ex  parte  Andrews.  40  Ala.  630;  How- 
land  Coal  &  Iron  W.  v.  Brown,  13  Bush,  681 ;  Burch  v.  Dubuciue  <fc  St.  P. 
R.  Co.  46  Iowa,  449;  Bryant  v.  Rich,  106  JMass.  180;  George  y.  Pilcher, 
28  Gratt.  299;  Miller  i'.  Finn,  1  Neb.  2.54;  Cooke  z?.  State  Nat.  Bank,  .52 
N.  Y.  96;  S.  C.  1  Bans.  494;  50  Barb.  339;  Swauu  v.  Myers,  70  N.  C.  101; 
AVaggoner  v.  Cheek,  2  Dill.  .560;  W.  A.  &  G.  R.  R.  Co.  v.  A.  W.  R.  R.  Co. 
19  Gratt.  592;  N.  J.  Zinc  Co.  v.  Trotter,  23  Int.  Rev.  R.  410;  Merwin  v. 
Wexel,  49  How.  Pr.  115.  Contra:  Florence  Sew.  M.  Co.  v.  Grover  &  B. 
Co.  1  Holmes,  235. 

11  Hyde  v.  Ruble.  3  Morr.  Trans.  516. 

12  Hyde  v.  Ruble,  3  Morr.  Trans.  516. 

13  Cooke  r.  Sellgman,  7  Fed.  Rep.  263. 

§  10k.  Citizenship  of  corporation.— A  corporation 

is  a  citizen  of  tlie  State  wliicli  created  it,  and  under  whose 
laws  it  exists;  i  and  the  same  rule  applies  to  public  mu- 
nicii)al  corporations;"-  and  the  right  to  remove  exists 
where  a  county  is  a  party,  and  the  other  party  is  a  citizen 
of  another  State. ^  It  does  not  become  a  citizen  of  a  State 
other  than  the  one  under  whose  laws  it  is  organized, 
merely  because  the  State  confers  on  it  the  privilege  to 
build  a  road  and  iiurchase  and  hold  real  estate;  ^  or  under 
whose  laws  it  enters  to  operate  its  road;^  so  a  license  to 
a  railroad  of  a  right  of  way  does  not  confer  citizenship;  ^ 
nor  is  its  citizenship  changed  by  leasing  a  road  in  another 
State.'!'  The  right  to  remove  is  not  lost  by  the  fact  that  it 
has  an  office  in  the  State  for  the  transaction  of  business.s 
It  cannot  be  deprived  of  its  right  of  removal  by  State 
legislation;  9  nor  is  it  affecjted  by  State  legislation  author- 
izing service  of  process  on  its  agent,  ^o  A  State  legislature 
may  exclude  a  foreign  corporation,  and  the  means  of  en- 


119  GROUND   OF  REMOVAL.  §   10  k 

forcing  such  exclusion,  or  the  motives  of  such  action,  will 
not  be  inquired  into;i^  but  a  general  waiver  of  the  right 
to  remove,  in  j^ursuance  of  a  State  statute,  as  a  condition 
for  transacting  business  in  the  State,  is  void;i-  so  a  stat- 
ute which  allows  a  foreign  corjDoration  to  do  business  in 
the  State  only  on  condition  that  it  will  agree  not  to  remove 
suits,  is  unconstitutional,  and  such  agreement  is  void.i^ 
A  State  law  requiring  a  foreign  corporation  to  comply 
with  certain  regulations  does  not  make  it  a  citizen;  !•*  but 
if  the  effect  of  the  State  legislation  be  to  adopt  the  cor- 
poration, it  becomes  for  the  purposes  of  jurisdiction  a 
corporation  of  that  State,  and  it  cannot  remove  a  cause 
brought  in  that  State;  15  it  is  a  citizen  of  that  State,  al- 
though it  transacts  business  in  the  State  where  suit  is 
brought, IS  and  although  some  of  the  stockholders  are 
citizens  of  the  State  where  suit  is  brought;  i"  as  a  foreign 
corporation  and  all  its  non-resident  corporators  may  re- 
move the  cause.  18  Where  corporations  entered  into  a 
contract  to  be  performed  under  the  laws  of  another  State, 
which  contract  was  by  that  State  declared  void,  the  cause 
cannot  be  removed  in  a  State  where  such  contract  was 
declared  valid.i^  If  a  corporation  is  instituted  under  the 
laws  of  two  States,  a  case  instituted  against  it  by  a  citizen 
of  one  of  the  States  in  a  suit  brought  inthe  other  may  be 
removed. 20  Where  the  same  persons,  by  the  same  cor- 
porate name,  have  been  incorporated  with  the  same 
powers  and  the  same  objects  by  another  State,  such  an  act 
must  be  construed  as  a  license  enlarging  the  field  of  its 
operations,  but  shorn  of  none  of  its  qualities  as  a  corpora- 
tion of  another  State,  and  it  is  privileged  to  elect  to  sue  in 
the  United  States  courts.21  But  where  several  railroad 
corporations  organized  in  several  States  consolidate,  and 
one  of  them  is  sued  in  the  State  in  which  it  was  organized 
by  the  name  of  the  consolidated  roads,  the  other  compan- 
ies which  exist  out  of  the  State  cannot  remove  the  cause.22 
So  a  suit  commenced  in  a  State  court  by  a  citizen  of  the 
State  which  created  the  company  cannot  remove,  though 


§  10  k  GROrXD  OF   REMOVAL.  120 

it  be  a  consolidated  company  chartered  by  several  States ;  23 
and  one  of  a  consolidated  corporation  created  under  the 
laws  of  another  State  cannot  go  into  that  State  and  have 
the  cause  removed.^i  A  consolidated  railroad  formed  of 
three  railroads,  chartered  by  different  States,  cannot  re- 
move on  the  ground  that  the  charters  obtained  from  other 
States  gave  it  a  foreign  citizenship; -5  but  if  a  corporation 
is  chartered  by  foreign  countries,  it  may  remove  a  cause 
as  an  alien.20  A  corporation  of  another  State  may  remove 
a  cause  commenced  by  attachment,  although  the  action 
could  not  be  commenced  by  original  process  in  the  circuit 
court.27  So  an  insolvent  corporation,  whose  property  is  in 
the  hands  of  a  receiver  of  a  State  court,  may  appear  in 
such  court  and  remove  the  cause  where  attachments  are 
filed  on  its  jproperty.^s  If  a  foreign  corporation  appears 
and  removes  a  suit,  it  is  too  late  to  except  to  the  process 
by  which  it  was  brought  into  the  State  court,  or  that  not 
being  an  inhabitant,  or  found  within  the  district,  the  suit 
could  not  have  been  commenced  in  this  court.23  Where  a 
citizen  of  the  State  joined  with  a  foreign  insurance  com- 
pany to  recover  from  a  non-resident  corporation  for  a 
total  loss  by  negligence,  the  suit  is  not  removable.so 

1  See  ante,  §  1  k. 

2  See  ante,  §  1  k. 

3  Cowles  V.  Mercer  Co.  7  Wall.  118. 

4  Williams  v.  Missouri,  K.  &  T.  R.  Co.  3  Dill.  267;  Denuistoun  v.  N. 
Y.  &  N.  H.  K.  Co.  1  Hilt.  62;  Baltimore  &  O.  R.  Co.  v.  Cary,  28  Ohio  St. 
2U8. 

5  Williams  v.  Missouri,  K.  &  T.  R.  Co.  3  Dill.  267;  and  see  Balti- 
more &0.  R.  Co.  V.  Cary,  28  Ohio  St.  208;  Allegheny  Co.  v.  Cleveland 
&  P.  R.  Co.  51  Pa,  St.  22s. 

6  Callahan  v.  Louisville  etc.  R.  Co.  11  Fed.  Rep.  536. 

7  See  ante,  %  1  k. 

8  Hatch  V.  Chicago,  R.  I.  &  P.  R.  Co.  6  Blatchf.  105. 

9  Railway  Co.  v.  Whitton,  13  Wall.  270. 

10  W.  U.  Tel.  Co.  V.  Dickinson,  40  Ind.  444;  Hobbs  v.  Manhattan  Ins. 
Co.  56  Me.  417;  Morton  v.  Mut.  L.  Ins.  Co.  105  Mass.  141. 

11  Doyle  V.  Continental  Ins.  Co.  94  U.  S.  535;  State  v.  Doyle,  40  Wis. 
220.    But  see  Hartford  F.  Ins.  Co.  v.  Doyle,  3  Cent.  L.  J.  41. 

12  Insurance  Co.  r.  Morse,  20  Wall.  445;  Railway  P.  A.  Co.  v.  Pierce. 
27  Ohio  St.  155;  Baltimore  &  O.  R.  Co.  v.  Cary,  28  Ohio  St.  203.  Contra: 
N.  Y.  Life  Ins.  Co.  v.  Best,  23  Ohio  St.  105. 


121  GROUND   OF  REMOVAL.  §  10  1 

13  Insurance  Co.  v.  Morse,  20  Wall.  445;  Metropolitan  L.  Ins.  Co.  r. 
Harper,  3  Hughes,  260. 

14  N.  Y.  Piano  Co.  v.  N.  H.  Steamboat  Co.  2  Abb.  Pr.  N.  S.  357; 
Railroad  Co.  v.  Koontz,  3  Morr.  Trans.  34. 

15  Uphoff  V.  Chicago,  St.  L.  &  N.  O.  R.  Co.  5  Fed.  Hep.  .545;  Johnson 
V.  Phila.  W.  &  B.  R.  Co.  0  Fed.  Kep.  6;  and  see  Chicago  &  W.  I.  II.  Co. 
V.  L.  S.  &  M.  S.  R.  Co.  5  Fed.  Kep.  19. 

16  Stevens  v.  Phoenix  Ins.  Co.  41  N.  Y.  149;  Holden  v.  Putnam  Ins. 
Co.  46  N.  Y.  1;  Kraushaar  r.  N.  H.  Steamboat  Co.  7  Ilobt.  357. 

17  Wheedon  v.  Railroad  Co.  1  Grant  Cas.  420;  Stevens  v.  Phoenix 
Ins.  Co.  41  N.  Y.  149.  See  Northern  Luie  P.  Co.  v.  Benninger,  70  III. 
571;  North  Kiv.  Steamboat  Co.  v.  Hoffman.  5  Johns.  Ch.  300.  See 
Arapahoe  Co.  v.  Kunsas  P.  K.  Co.  4  Dill.  277. 

18  Kosenfeld  v.  Adams  Exp.  Co.  21  La.  An.  233. 

19  Wiggins  V.  Chicago  &  A.  K.  Co.  11  Fed.  Hep.  382. 

20  Allegheny  Co.  r.  Cleveland  &  P.  R.  Co.  51  Pa.  St.  228;  RaUway 
Co.  V.  Whitton,  13  Wall.  270. 

21  Missouri  K.  &  T.  R.  Co.  v.  Texas  &  St.  L.  R.  Co.  10  Fed.  Rep.  597. 

22  Chicago  &  W.  I.  R.  Co.  v.  Lake  Shore  &  M.  S.  R.  Co.  11  The  Re- 
porter, 323. 

23  Uphoff  V.  Chicago,  St.  L.  &  N.  O.  R.  Co.  5  Fed.  Rep.  545. 

24  Chicago  &  K.  I.  R.  Co.  v.  L.  S.  &  M.  S.  R.  Co.  5  Fed.  Rep.  19;  L.  S. 
&  M.  S.  R.  Co.  V.  C.  &  R.  I.  R.  Co.  5  Fed.  Rep.  19. 

25  Johnson  v.  Philadelphia,  W.  &  B.  R.  Co.  9  Fed.  Rep.  6.  See  gen- 
erally Ohio  &  M.  R.  Co.  V.  Wheeler,  1  Black,  286;  Bait.  &  O,  R.  Co.  v. 
Harris,  12  Wall.  65;  Chicago  &  N.  W.  R.  Co.  v.  Whitton.  13  Wall.  270; 
Williams  v.  Missouri,  K.  &  T.  R.  Co.  3  Dill.  267;  Marshall  v.  Bait.  &  O. 
R.  Co.  16  How.  314;  Same  v.  Gallahne's  Adm'rs,  12  Gratt.  653;  Chicago 
&  N.  W.  U.  Co.  V.  Chicago  &  P.  R.  Co.  6  Biss.  219;  Minot  v.  Phila.  W.  & 
B.R.  Co.  2  Abb.  (U.  S.)  323;  Goshorn  v.  Supervisors,  1  W.  Va.  308. 

26  Terry  v.  Insurance  Co.  3  Dill.  403.  See  Fisk  v.  Chicago  etc.  B.  Co. 
53  Barb.  472;  King  of  Spain  v.  Oliver,  2  Wash.  C.  C.  429. 

27  Bliven  v.  New  England  Screw  Co.  3  Blatchf.  Ill;  Barney  v.  Globe 
Bank,  5  Blatchf.  107;  Sayles  v.  Northwestern  Ins.  Co.  2  Curt.  212. 

28  Second  Nat.  Bank  v.  N.  Y.  Silk  Manuf .  Co.  11  Fed.  Rep.  532. 

29  Sayles  i;.  Northwestern  Ins.  Co.  2  Curt.  212. 

30  First  Pres.  Soc.  v.  Goodrich  T.  Co.  7  Fed.  Rep.  257. 

§  10  1.  Assignees. — A  suit  may  be  removed  altbougli 
it  is  brought  by  the  assignee  of  a  chose  in  action, i  in  his 
own  name  and  in  jiursuance  of  a  State  law;  ^  or  by  the  as- 
signee of  a  contract  to  recover  damages  for  its  breach;  3 
but  a  defendant  cannot  acquire  the  right  to  a  removal  by 
the  purchase  of  the  interests  of  his  co-defendants;**  but  a 
defendant  may  remove  a  suit  brought  against  him  by  an 
assignee,  the  assignee  being  the  citizen  of  another  State, 
though  the  assignor  in  whose  favor  the  debt  was  con- 
tracted belongs  to  the  same  State  as  defendant.^  AVhere 
Desty  removal.— 11. 


§  10  1  GROUND   OF   KEMOVAL.  122 

a  citizen  transfers  mortgage  notes  to  a  foreigner,  for  the 
purpose  of  giving  jurisdiction,  not  accompanied  with  an 
agreement  for  a  retransfer,  the  circuit  court  will  take 
jurisdiction  of  the  cause  when  removed;  ^  and  so  as  to  the 
transfer  of  hinds ; '  and  the  fact  that  the  motive  was  to 
bring  the  suit  will  not  impair  the  right  of  action.^  A  bona 
fide  conveyance  of  property  in  controversy,  for  the  ex- 
press ijurpose  of  conferring  jurisdiction,  is  no  ground  for 
remanding  a  cause  to  the  State  court.^  So  the  right  to 
sue  is  not  invalidated  by  the  fact  that  the  note  was  trans- 
ferred for  the  purpose  of  giving  the  court  jurisdiction;!" 
but  a  transfer  mala  fide  in  one  State  to  the  citizen  of 
another  will  not  enable  the  grantee  to  maintain  ejectment 
in  the  United  States  court. i^  Tbe  circuit  court  has  no 
jurisdiction  where  the  nominal  j)arties  have  been  made 
l^arties  collusively  to  bring  the  controversy  within  its 
jurisdiction.  ^^  Where  parties  conveyed  lands  to  a  stranger, 
a  citizen  of  another  State,  without  his  knowledge  and 
without  consideration,  for  the  purpose  of  creating  juris- 
diction in  the  United  States  courts,  the  transaction  was 
only  colorable  and  collusive,  and  the  suit  must  be  dis- 
missed. i3  A  plaintiff  brought  into  the  controversy  by 
assignment,  merely  that  he  may  acquire  a  standing  to 
enable  him  to  prosecute  in  the  interest  of  the  original 
party,  is  improperly  and  collusively  made  a  party  to  the 
suit.  14  The  sections  of  the  Act  of  March  3rd,  1875,  should 
be  construed  together,  and  the  remedy  should  not  be  al- 
lowed where  the  plaintiff  is  assignee,  unless  the  assignee 
might  have  brought  suit  in  the  Federal  court,  i^ 

1  Bushnelli;.  Kennedy,  9  Wall.  387;  Lexington  v.  Butler,  14  Wall. 
282;  Barclay  v.  Commissioners,  1  Woods,  254.  But  see  Ayres?;.  Western 
U.K.  Corp.  32  How.  Pr.  351;  New  Orleans  C.  &  B.  Co.  v.  Kecorder,  27  La. 
An.  291;  Colcord  v.  Wall,  2  Miles,  459. 

2  Thompson  v.  Kailroad  Cos.  6  Wall.  134.  But  see  Anderson  v. 
Manuf .  Bank,  14  Abb.  Pr.  436. 

3  Barney  v.  Globe  Bank,  5  Blatchf.  107. 

4  Temple  v.  Smith,  4  Fed.  Rep.  392. 

5  Waterbury  v.  City  of  Laredo,  3  Woods,  371:  Leutz  v.  Butterfield. 
7  Daly,  24. 

6  Marion  v.  Ellis,  10  Fed.  Keu.  410. 


123  GROUND   OF  REMOVAL  §  10  HI 

7  De  Laveaga  v.  Williams,  6  Sawy.  573. 

8  Foote  V.  Town  of  Hancock,  15  Blatchf .  343. 

9  Hoyt  V.  Wright,  4  Fed.  Kep.  1G8. 

10  Lanning  v.  Lockett,  II  Fed.  Kep.  814 ;  S.  C.  10  id.  451. 

11  Greenwalt  v.  Tucker,  10  Fed.  Kep.  884. 

12  Marion  v.  Ellis.  9  Fed.  Rep.  367.  See  Hawes  v.  Contra  Costa  W. 
Co.  11  Fed.  Kep.  93,  note. 

13  Coffint;.  Haggin,  llFed.  Kep.  219. 

14  Fountain!;.  Town  of  Angelica,  12  Fed.  Rep.  8. 

15  Berger  v.  Douglas  Co.  5  Fed.  Rep.  23.  But  see  Lexington  v.  But- 
ler, 14  Wall.  282;  Buslinell  v.  Kennedy,  9  Wall.  387;  Green  v.  Custard, 
23  How.  484. 

§  10  m.  Nominal  parties. — The  nou- joinder  of  nomi- 
nal or  unnecessary  parties  will  not  defeat  the  right  to  a 
removal.  1  They  are  not  to  be  treated  as  imrties,  although 
made  jiarties  to  the  suit."-  So  if  a  citizen  of  the  State 
where  suit  is  brought  is  not  a  necessary  party,  and  his 
presence  is  not  essential,  the  non-resident  defendant  may 
remove,  although  the  former  does  not  unite  in  the  peti- 
tion ;3  and  where  all  the  defendants  join  but  one,  and 
that  one  is  an  v^unecessary  party,  the  cause  may  'be  re- 
moved.^ So  if  i)laintiff  is  a  citizen  of  another  State,  he 
may  remove  the  cause  if  some  of  the  defendants,  citizens 
of  another  State,  are  merely  nominal  parties.^  The  right 
to  a  removal  is  not  affected  by  the  fact  that  a  defendant, 
a  citizen  of  the  same  State,  is  a  proper  but  not  an  indis- 
pensable party  to  a  separable  controversy. ^  Where  the 
real  party  to  a  controversy  is  clearly  entitled  to  have  his 
rights  passed  upon  by  the  courts  of  the  United  States,  he 
is  entitled  to  remove,  although  the  nominal  party  has  no 
such  right."  So  where  a  landlord,  the  real  owner,  assumes 
the  defense,  he  makes  himself  a  party,  and  being  the  real 
defendant  may  remove  the  cause  if  he  be  a  citizen  of  a 
State  other  than  that  of  the  jilaintiff.^  And  when  a 
tenant  in  possession  disclaimr  title,  she  may  have  her 
landlord  substituted  as  defendant;'-^  but  it  is  otherwise  if 
the  tenant  does  not  disclaim,  when  all  must  join.i" 
"Where  the  real  party  to  a  controversy  is  clearly  entitled 
to  ha\  e  his  rights  i^assed  upon  by  the  courts  of  the  United 


§  10  m  GROUND   OF   REMOVAL.  124 

States,  he  is  entitled  to  remove,  although  the  nominal 
party  has  no  such  right;  ii  and  an  alien,  a  real  party  in 
interest,  may  remove  a  suit  brought  against  him  by  the 
State.i^  Though  the  nominal  party  be  a  party  on  the 
record,  yet  it  will  not  defeat  the  right  of  the  real  party  in 
interest  to  remove  and  have  the  cause  determined  in  the 
Federal  court. ^3  So  in  ejectment  the  sole  owner  may 
remove,  although  his  grantor,  a  citizen  of  the  same  State 
as  plaintiff,  is  a  party. i^  If  the  onlj'  relief  prayed  in  a  suit 
against  a  corjioratiou  and  its  officers  is  by  injunction,  the 
officers  are  merely  nominal  parties ;  is  so  of  a  suit  to  enjoin 
the  execution  of  a  lease.i*^  Tliey  are  not  such  necessary 
parties  to  a  suit  involving  title  to  lands  as  to  prevent  a 
removal.i"  Officers  joined  as  defendants  in  equity,  but  as 
to  whom  no  relief  is  prayed,  are  nominal  parties,  such  as 
will  not  defeat  the  right  to  a  removal.i'^  Where  a  non- 
resident stockholder  of  a  banking  corporation  does  not 
unite  in  the  application,  the  corjioratiou  cannot  be  heard 
to  complain;  the  objection  can  only  be  assigned  as  error 
by  the  party  himself. i^  State  and  county  officers  are  not 
necessary  parties  to  a  controversy  relating  to  the  validity 
of  bonds.-o  Citizenship  of  nominal  parties,  or  of  aliens 
who  do  not  constitute  the  entire  party  on  one  side,  will 
not  give  a  right  to  removal;  -i  but  the  fact  that  defendants 
are  named  who  have  not  been  served,  or  have  not  ap- 
l^eared,  who  are  citizens  of  the  same  State  as  plaintiff, 
will  not  defeat  the  right  to  a  removal.-- 

1  Wood  V.  Davis,  18  How.  4G7;  Wartl  v.  Arredonrlo,  1  Paine,  410; 
Arapahoe  Co.  r.  Kansas  P.  R.  Co.  4  Dill.  277;  Eilijerton  r.  Gilpin,  3 
Woods,  277 ;  Fisk  v.  Chicaso,  K.  I.  &  P.  11.  Co.  55  Barb.  472;  Mayor  etc. 
r.  Cummins,  47  Ga.  u2r;  Calloway  v.  Ore  Knob  Co.  74  X.  C.  200. 

2  Livingston.^  Gibbons,4.John-;.  Cli.  94;  James  ?;.  Thurston,  6  II.  I. 

428. 

3  Hatch  V.  Chicago,  R.  I.  &  P.  Pv.  Co.  6  Blatchf.  105;  Ex  parte 
Girard,3  Wall.  Jr.26:J;  Hadley  r.  Dunlap,  10  Ohio  St.  1;  Livingston  v. 
Gibbons,  4  Johns.  Ch.  94.    Contra :  "Wilson  v.  Blodget,  4  McLean,  363. 

4  Cooke  V.  Seiigman,  7  Fed.  Kep.  263. 

5  Akerly  v.  Vilas,  2  Biss.  110.    See  Sands  v.  Smith,  1  Dill.  290. 

6  Barney  v.  Latham,  2  Morr.  Trans.  638. 

7  Cohens  v.  Virginia,  6  Wheat.  264. 


125  GROUND   OF  REMOVAL.  §   10  11 

8  Greene  v.  Klinger,  10  Fed.  Rep,  689. 

9  State  V.  Lewis,  12  Fed.  Kep.  1. 

10  Allin  V.  Robinson,  1  Dill.  119. 

11  Cohens  v.  Yirginia,  6  Wheat.  264. 

12  State  V.  Lewis,  12  Fed.  Rep.  1;  Stater.  Texas  Pac.  R.  K.  Co.  3 
"Woods,  308. 

13  Greene  v.  Klinger,  10  Fed.  Rep.  689;  Barney  v.  Latham,  103  U.  S. 
205. 

14  Calloway  v.  Ore  Knob  Co.  74  X.  C.  200. 

1.5    Hatch  r.  Chicago,  R.  I.  &  P.  R.  Co.  6  Blatchf.  105. 

16  Pond  r.  Sibley,  7  Fed.  Rep.  129;  Nat.  Bank  of  Lyndon  v.  Wells 
Riv.  Mauuf 'g  Co.  7  Fed.  Rep.  750. 

17  Nat.  I!ank  of  Lyndon  v.  Wells  Riv.  Manuf'g  Co.  7  Fed.  Rep.  750; 
Pond  V.  Sibley,  7  Fed.  Rep.  129. 

18  Fisk  V.  Chicago,  R.  I.  &  P.  R.  Co.  6  Blatchf.  Ii5. 

19  Danville  B'k  &  T.  Co.  v.  Parks,  8S  III.  170. 

20  Town  of  Aroma  r.  Auditor,  2  Fed.  Rep.  33. 

21  Hervev  r.  Illinois  etc.  R.  R.  Co.  7  Biss.  103;  Arapahoe  Co.  v.  Kan- 
sas &  P.  K.  R.  Co.  4  Dill.  277. 

22  Ex  parte  Girard,  3  WaU.  Jr.  263. 

§  10  n.  Inseparable  controversy.— The  controversy 
must  be  wholly  between  citizens  of  different  States  to 
give  the  right  to  remove.i  Congress  did  not  intend  to 
confer  the  right  where  a  citizen  of  a  Stat3  other  than  that 
in  which  suit  is  brought  is  united  with  one  who  is  a  citizen 
of  the  latter  State; 2  so  in  a  bill  to  foreclose  a  mortgage;  ^ 
or  to  redeem  from  a  mortgage  sale.^  So  the  purchaser  of 
an  equity  of  redemption  cannot  remove  if  mortgagor  and 
mortgagee  are  citizens  of  the  same  State ;5  and  so  where 
a  judgment  creditor  iutervenes.c  "Where  the  suit  em- 
braces a  single  individual  controversy,  one  party  cannot 
remove  if  the  other  party  consists  of  residents  and  non- 
residents;" so  of  a  bill  for  a  specific  performance;  s  or  a 
bill  to  dissolve  a  corporation;  9  or  where  the  owner  elects 
to  bring  an  action  for  a  conversion;  i*^  or  if,  in  the  contest 
of  a  will,  or  in  a  suit  to  annul  a  will,  necessary  parties 
joined  are  residents  and  non-residents. u  If  a  stockholder 
disputes  the  rights  of  both  claimants,  and  one  is  a  citizen 
of  another  State,  the  case  cannot  be  removed. 1^  A  suit  to 
recover  land  where  the  real  parties  are  claimants,  and 
damages  are  demanded  of  non-residents,  cannot  be  re- 


§  10  n  GROUND   OF   REMOVAL.  126 

moved.  13  If  substantial  relief  is  asked  against  a  party 
who  is  a  citizen  of  the  same  State  as  plaintiff,  the  cause 
cannot  be  removed."  Where  non-residents  sued  out  at- 
tachments, and  these  were  followed  by  other  attachments 
by  resident  creditors,  the  non-residents  cannot  remove 
the  cause. 15  Where  less  than  all  the  plaintiffs  or  defend- 
ants seek  to  remove,  they  must  be  citizens  of  different 
States,  and  the  controversy  must  be  wholly  between 
them;i<5  for  unless  the  original  controversy  is  between 
citizens  of  different  States,  the  case  is  not  removable;!^ 
so  a  judgment  creditor  cannot  remove  a  cause  where  the 
controversy  is  between  citizens  of  tlie  same  State.is  If 
complainant  and  some  of  the  defendants  are  citizens  of 
the  same  State,  the  cause  cannot  be  removed  ;19  even 
where  one  defendant  is  a  citizen  of  t]ie  State,  it  cannot  be 
removed.-"  Where  action  is  brought  against  several  de- 
fendants, only  one  of  whom  is  a  citizen  of  the  State,  the 
right  as  to  the  subject-matter  does  not  attach  under  the 
lirst  clause,  nor  under  the  second  clause,  because  there  is 
no  severable  coutroversy.-i  Where  parties  on  both  sides 
are  necessary  to  the  claims  of  one  of  the  parties,  the 
cause  is  not  removable ;  22  and  even  under  the  judiciary 
act,  if  an  indispensable  party  is  a  citizen  of  the  same 
State  with  the  plaintiff,  jurisdiction  would  be  defeated; 23 
so  a  stockholder  cannot  remove  a  cause  to  have  stock 
issues  declared  void.-^  Heirs  and  devisees  of  the  debtor 
are  necessary  parties  to  a  bill  to  subject  real  estate  of  the 
debtor  to  the  satisfaction  of  his  debts;  25  but  a  widow  who 
has  renounced  her  rights  under  a  will  is  not  a  necessary 
party  in  a  suit  to  annul  the  will;  26  yet  the  executors  are, 
if  they  are  trustees  for  the  party  seeking  to  avoid  the 
will.2"  A  bill  in  equity  to  establish  a  resulting  trust  in 
land  in  possession  of  a  mortgagor  is  not  removable  where 
defendants  are  inseparable ;  28  so  one  or  more  of  several 
trustees  cannot  remove;  29  and  the  beneficiary  of  a  trust 
is  a  necessary  party .3°  Where  the  bill  asserts  the  obliga- 
tion of  a  bond,  or  an  interest  covenant  against  obligor, 


127  GROUND   OF   KEMOVAL.  §  10  U 

lie  is  a  necessary  party.^i  A  bank  is  a  necessary  party  in 
a  suit  by  the  widow  for  tbe  money  of  her  husband  held  on 
deposit; 3-  so  the  next  frisnd  of  a.  femme  covert  is  a  neces- 
sary party.33  An  action  to  enforce  a  joint  liability  cannot 
be  removed ; 34  so  of  an  action  brought  against  joint  tort 
feasors,  one  being  a  resident  and  the  other  a  non-resident.35 

1  Blake  v.  McKim,  103  U.  S.  336:  Bybee  v.  Hackett,  5  Fed.  Rep.  1 ; 
Carralitrrr.  Brennaii.  7  Biss.  4H7;  Arapahoe  Co.  v.  Kansas  Pac.  K.  R. 
Co.  4  Dill.  277 ;  Burch  r.  Davenport  etc.  R.  R.  Co.  46  Iowa,  449. 

2  Kamsi'.  Atlantic  &  Ohio  R.  R.  Co.  10  Fed.  Rep.  309;  Chicago  v. 
Gage,  6  Biss.  457;  Blake  v.  McKim,  103  U.  S.  336. 

3  Donohue  v.  Mariposa  L.  &  M.  Co.  5  Sawy.  163.  See  Bnrcli  v. 
Davenport  <k  St.  P.  R.  R.  Co.  46  Iowa,  44d. 

4  Miller  v.  Finn,  1  Neb.  254;  Ryan  v.  Young,  11  Ch.  L.  N.  353. 

5  First  Nat.  Bank  v.  King  W.  I.  Co.  2  Cent.  L.  J.  505. 

6  Ayers  v.  Chicago,  101  U.  S.  184. 

7  Price  v.  Foreman,  12  Fed.  Rep.  641. 

8  Tyler  v.  Hagerty,  10  Ch.  L.  X.  100. 

9  Taylor  v.  Rockefeller,  35  Leg.  Int.  284. 

10  Patterson  v.  Chapman,  13  Blatchf.  395. 

11  Re  Frazer,  10  Ch.  L.  N.  390.  See  Price  r.  Foreman,  12  Fed.  Rep. 
641. 

12  Bailey  v.  N.  Y.  Sav.  B'k,  2  Fed.  Rep.  14. 

13  Corbin  v.  Van  Brunt,  4  Morr.  Trans.  818. 

14  Latham  v.  Barney,  10  Ch.  L.  N.  11. 

15  Bates  v.  Days,  11  Fed.  Rep.  529. 

16  Hervey  v.  Illinois  M.  R.  R.  Co.  7  Biss.  103. 

17  Chicago  v.  Gage,  6  Biss.  467;  First  Nat.  B'k  v.  King  W.  L  Co.  2 
Cent.  L.J.  505. 

18  Chicago  v.  Gage,  6  Biss.  467. 

19  N.  J.  Zinc  Co.  r.  Trotter,  23  Int.  Rev.  Rec.  410. 

20  Hervey  r.  Dlinois  M.  R.  R.  Co.  7  Biss.  103. 

21  Hyde  v.  Ruble,  3  Morr.  Trans.  516;  Barney  v.  Latham,  103  U.  S 
205. 

22  Hanover  F.  Ins.  Co.  v.  Keogh,  7  Fed.  Rep.  764. 

23  Vannevar  r.  Brvant,21  Wall.  41;  Bryant  v.  Rich,  106  Mass.  192; 
Wilson  r.  Blodgett,  4"McLean,  360;  Ol)er  v.  Gallagher,  93  U.  S.  199;  Ha- 
gan  r.  Walker,  14  How.  2y;  .Shields  v.  Barrow,  17  How.  1-30;  Clearwater 
V.  Meredith.  21  How.  89;  B  rney  v.  Baltimore,  6  Wall.  280;  Commercial 
etc.  B'k  V.  Slocouib,  14  Peters,  05. 

24  Shumway  r.  C.  &  I.  R.  R.  Co.  4  Fed.  Rep.  385. 

25  Walker  v.  Powers,  3  Morr.  Trans.  260. 

26  Chester  v.  Chester,  7  Fed.  Rep.  1. 

27  Price  v.  Foreman,  12  Fed.  Rep.  641. 

28  Price  r.  Foreman,  12  Fed.  Rep.  641. 

29  Clark   v.  Opdyke,  17  N.  Y.  Supr.  383. 

30  Lauriate  v.  Stratton,  II  Fed.  Rep.  107. 


§  10  O  GROUND   OF  REMOVAL.  128 

31  Chaffraix  v.  Board  of  Liquidation,  11  Fed.  Rep.  638. 

32  BaUey  v.  New  York  Sav.  B'k,  18  BlatcM .  77. 

33  Kuckmann  v.  Palisades  L.  Co.  1  Fed.  Rep.  367. 

34  Yulee  v.  Vose,  99  U.  S.  539. 

35  Clark  c.  Chicago,  M.  &  St.  P.  K.  R.  Co.  11  Fed.  Rep.  355. 

§  10  o.  The  whole  controversy  removed.— Un- 
der this  section  the  whole  suit  must  be  removed,^  and 
not  like  the  Act  of  1866,  a  part  of  it.2  It  cannot  be  re- 
moved as  to  one  defendant,  and  left  standing  as  to  oth- 
ers.3  The  first  clause  of  this  section  requires  all  the 
plaintiffs  or  all  the  defendants  to  have  the  right  to  re- 
move, and  applies  to  the  ordinary  action  at  common  law, 
where  there  is  only  one  party  on  each  side.^  Where  the 
action  was  by  a  citizen  of  the  State  against  several  de- 
fendants, and  the  circuit  court  had  jurisdiction  from  the 
amount  in  controversy,  any  one  of  the  defendants  may 
apply  for  a  removal  if  the  matter  can  be  fully  determined 
between  them;5  but  the  controversy  must  be  wholly 
between  them;6  and  the  whole  suit  must  be  removed;  ^ 
for,  if  not  wholly  between  them,  it  cannot  be  removed, 
although  the  controversy  of  the  defendant  could  be  dis- 
posed of  separately.^  The  suit  may  be  removed,  although 
it  does  not  arise  under  the  Constitution,  treaties,  or  laws 
of  the  United  States/-*  and  irrespective  of  its  quality  as 
equitable  or  legal ;  i^  or  although  there  may  be  other  con- 
troversies in  the  suit  between  other  parties;  ii  or  al- 
though the  controversy  removed  is  only  incidental,  as  the 
removal  takes  the  principal  controversy,  and  all  other 
controversies  to  the  circuit  court;  i^  or  although  one  of 
the  controversies  takeu  along  be  between  citizens  of  the 
same  State.i^  The  removal  of  the  suit  as  to  one  defend- 
ant removes  it  as  to  all  ;i^  and  all  the  defendants  need 
not  join. 15  This  clause  applies  to  suits  where  there  may 
be  distinct  controversies  between  different  sets  of  plaint- 
iffs and  defendants, i*^  when  the  parties  may  be  so  trans- 
posed on  opposite  sides,  according  to  their  interests,  as  to 
effect    a    determination    of    their  rights. i"     Under   this 


129  GROUND    OF   REMOVAL.  §   10  O 

clause,  each  individual  plaintiff  must  be  a  citizen  of  a 
State  different  from  that  of  each  individual  defendant.i^ 
The  case  may  be  removed  where  the  parties  applying 
have  interpleaded,  as  where  interveners  charge  fraud  and 
want  of  jurisdiction.13  Either  one  or  more  may  apply  for  a 
removal,  although  other  i)arties  are  citizens  of  the  same 
State  with  those  on  the  opposite  side.-*^  If  the  real  litiga- 
tion is  between  citizens  of  different  States,  the  case  is 
within  this  section,  notwithstanding  some  of  the  adver- 
sary parties  may  be  citizens  of  the  same  State  with  some 
of  the  defendants.2i  Where  the  controversy  is  severable, 
a  joint  tort  feasor  may  remove; 22  and  where  j)laintiff  has 
Tinited  controversies  which  can  be  fully  determined  as 
between  the  parties,  citizens  of  another  State  may  re- 
move the  cause; 23  but  if  the  cause  of  action  is  joint,  it 
cannot  be  removed  on  the  petition  of  one  only .24  The 
right  of  removal  in  such  cases  is  on  condition  that  the 
case  can  be  wholly  determined  as  to  the  parties;  25  so,  if 
three  separate  actions  are  brought,  and  the  same  defense 
is  made  in  each,  and  a  judgment  in  one  will  determine 
the  whole  controversy,  they  may  be  removed  if  the  joint 
amount  incontrovertibly  exceeds  .^500.26  AYhere  five  at- 
tachments were  separately  sued  out  against  one  stock  of 
goods,  the  question  of  ownership  is  a  single  controversy.27 
There  may  be  a  removal  of  that  part  of  a  cause  which 
concerns  the  original  parties,28  notwithstanding  that  a 
State  statute  may  declare  that  the  trial  as  to  certain  other 
parties  cannot  be  separated  from  the  trial  of  the  main 
cause.2'J  But  the  circuit  court  has  no  authority  to  decide 
an  action  not  yet  before  it,  to  obtain  jurisdiction  over  one 
of  several  tenants  in  comnion.^o 

1  Sew.  Mach.  Cos.'  Case,  IS  Wall.  553;  S.  C.  110  Mass.  81 ;  Ellis  v.  Sis- 
son,  11  Fed.  Kep.  353;  Barueyr.  Latham,  11  The  Reporter, N.  S. Til;  Car- 
raher  r.  Brennaii,  7  Blss.  4!)7 ;  Hervev  v.  Illinois  etc.  It.  ("o.  7  Biss.  103; 
Giiardey  v.  Moore.  3  Woods.  397;  Removal  Cases,  100  U.  S.  457;  Ara- 
l)ahoe  Co.  v.  Kansas  Pac.  R.  Co.  4  Dill.  277;  Burch  v.  Davenport  &  St. 
P.  U.  Co.  46  Iowa,  449. 

2  Chicago  r.  Gage,  6  Biss.  467;  S.  C.  8  Ch.  L.  N.  49;  Hervey  v.  I.  M. 
R.  W.  Co.  7  Biss.  103. 

3  Chambers  v.  Holland,  11  Fed.  Rep.  209;  Barney  v.  Latham,  103  U. 
S.  -.'05;  Blake  v.  McKim,  103  U.  S.  336. 


§   10  O  GROU>D   OF  REMOVAL,.  130 

4  Maine  v.  Gilman,  10  Fed.  Rep.  214.  It  relates  to  a  single  individ- 
ual controversy  in  whicli  all  on  ttie  moving  side  are  necessary  parties, 
■when  all  must  unite,  while  the  second  clause  contemplates  cases  in 
■which  there  are  persons  whose  presence  is  not  necessary:  Smith  v. 
McKay,  4  Fed.  Rep.  353. 

5  McLean  v.  Chicago  &  St.  P.  R.  Co.  16  Blatchf.  319;  Taylor  v. 
Rockefeller,  6  Fed.  Kep.  226;  Stapleton  r.  Reynolds,  9  Ch.  L.  N.  33; 
Evans  v.  Faxon,  10  Fed.  Eep.  312;  Hervey  v.  Illinois  &  Midland  R.  Co. 
7  Biss.  103;  Girardey  v.  Moore,  3  Woods,  397;  First  Presb.  Soc.  of  G.  B. 
t?.  Goodrich  T.  Co.  7  Fed.  Kep.  257;  Maine  v.  Gilman,  10  Fed.  Rep.  214; 
Wormser  v.  Dahlman,  57  How.  Pr.  286. 

6  Evansr.  Faxon,  10  Fed.  Eep.  312;  Walsh  f.  Memphis,  C.  &  N.  W. 
R.  Co.  6  Fed.  Rep.  797;  McLean  v.  St.  Paul  &  Chicago  R.  Co.  16  Blatchf. 
309;  Elierman  i'.  New  Orleans,  M.  &  T.  K.  Co.  2  Woods,  120;  Smith  v. 
St.  Louis  M.  L.  Ins.  Co.  2  Tenn.  Ch.  656;  First  Presb.  Soc.  of  G.  B.  v. 
Goodrich  T.  Co.  7  Fed.  Rep.  257. 

7  Can-aher  I'.  Brennan,  7Biss.  497;  Board  t;.  Kan.  Pac.  E.  R.  4  Dill. 
277;  Burch  v.  Davenport  &  St.  P.  R.  Co.  46  Iowa,  449;  Barney  v.  La- 
tham, 11  The  Reporter,  N.  S.  93;  Chicago  v.  Gage,  6  Biss.  467. 

8  Girardey  v.  Moore,  3  Woods,  397. 

9  Low  V.  Wayne  Co.  Sav.  Bk.  14  Blatchf.  449. 

10  Ketchum  v.  Black  River  Lum.  Co.  4  Fed.  Rep.  139. 

11  Hervey  v.  Hlinois  M.  R.  Co.  7  Biss.  103;  Bybee  v.  Hawkett,  5  Fed. 
Rep.  1;  SteVens  r.  Richardson,  9  Fed.  Rep.  191;  Evans  t;.  Faxon,  10 
Fed.  Rep.  312. 

12  Farmers'  L.  &  T.  Co.  v.  C.  P.  &  S.  R.  Co.  12  Ch.  L.  N.  65. 

13  Sheldon  v.  Keokuk  N.  W.  Line  Pack.  Co.  1  Fed.  Rep.  789." 

14  Stapleton  v.  Reynolds,  9  Ch.  L.  N.  33. 

15  Stapleton  v.  Re>nolds,  9  Ch.  L.  N.  33;  Davis  v.  Cook,  9  Nev.  134. 
Where  all  the  parties  have  the  requisite  citizenship,  one  alone  may 
petition.  Arapahoe  Co.  v.  Kansas  P.  R.  R.  Co.  4  Dill.  277 ;  Girardey  v. 
Moore,  3  Woods,  397;  Carswell  i;.  Schley,  59  Ga.  17. 

16  Maine  v.  Gilman,  10  Fed.  Rep.  214;  Barney  v.  Latham,  103  U.  S. 
205. 

17  Burke  v.  Flood,  1  Fed.  Rep.  541 ;  6  Sawy.  220. 

18  Burke  r.  Flood,  1  Fed.  Rep.  541;  S.  C.  4  Pac.  C.  L.J.  501;  Van 
Brunt  V.  Corbin.  14  Blatchf.  496;  In  re  Frazier,  10  Ch.  L.  N.  390;  Ruble 
V.  Hyde,  3  Fed.  Rep.  330.  If  some  of  the  plaintiffs  or  some  of  the  de- 
fendants are  citizens  of  the  same  State,  one  alone  cannot  remove  the 
cause:  Hervey  i».  Illinois  M.  R.  R.  Co.  7  Biss.  103;  Ruckman  r.  Pali- 
sades Land  Co.  1  Fed.  Rep.  367. 

19  Burdick  r.  Peterson,  6  Fed.  Rep.  840;  Tower  r.  Ficklin,  60  Ga. 
373;  Healy  r.  Provost.  25  Int.  Rev.  Rec.  240.  See  Postmaster-General 
V.  Cross,  4  Wash.  C.  C.  326;  Martin  r.  Taylor,  4  Wash.  C.  C.  1. 

20  Boone  v.  Iowa  &  M.  Const.  Co.  10  Fed.  Rep.  401;  In  re  Iowa  & 
M.  Const.  Co.  10  Fed.  Rep.  4ul. 

21  Girardey  v.  Moore,  3  Woods,  397;  Nat.  Union  Bank  v.  Dodge,  25 
Int.  Rev.  Rec.  304.    See  Shepard  v.  K.  N.  L.  Pack.  Co.  12  Ch.  L.  N.  220. 

22  Lockhart  v.  Horn,  1  Woods,  634;  and  see  Sheiflon  v.  Keokuk  N. 
L.  P.  Co.  1  Fed.  Rep.  789;  Taylor  v.  Rockefeller,  7  Cent.  L.  J.  349: 
Clark  V.  Chicago  M.  &  St.  P.  R.  Co.  11  Fed.  Rep.  355. 

23  Clark  v.  Chicago  M.  &  S.P.  R.  Co.  11  Fed.  Rep.  355;  Sweet  v. 
Same,  11  Fed.  Rep.  355. 

24  Stevens  v.  Richardson,  9  Fed.  Rep.  191. 


131  GROUND   OF   REMOVAL.  §  10  p 

25  Nat.  Union  Bk.  v.  Dodge,  25  Int.  Rev.  Rec.  304. 

26  Carraher  v.  Brennan,  7  Biss.  497;  Ellerman  v.  New  Orleans,  M.  & 
T.R.Co.  2  Woods,  120;  Smithi;.  St. Louis  M.L.  Ins.  Co.  2  Teun.  CU.  (356; 
Smith  V.  McKay,  4  Fed.  Rep.  353;  Heivey  v.  Illinois  M.  R.  Co.  7  Biss. 
103;  Chicago  v.  Gage,  6  Biss.  467;  Osgood  v.  Chicago,  D.  &  V.  R.  Co.  6 
Biss.  330;  Board  v.  Kansas  Pae.  R.  Co,  4  Dill.  277;  Burnham  v.  D.  &  M. 
E.  Co.  4  Dill.  503. 

27  Anderson  v.  Gerding,  3  Woods,  487. 

28  Temple  v.  Smith,  4  Fed.  Rep.  392. 

29  Ellerman  v.  New  Orleans,  M.  &  T.  R.  Co.  2  Woods,  120. 

30  Ex  parte  Turner,  3  Wall.  Jr.  258. 

§  10  p.  Decisions  under  the  Acts  of  1866, 1867.— 

A  non-resident  plaintiff  is  entitled  to  a  removal  as  to  all 
the  defendants.!  He  may  remove  as  against  a  citizen  of 
the  State  in  which  suit  is  brought  and  a  citizen  of  a  third 
State  who  had  voluntarily  appeared. 2  A  removal  is  not 
authorized  when  the  application  is  made  by  a  citizen  of 
the  State  where  suit  is  brought,^  nor  where  both  parties 
are  citizens  of  the  same  State.^  If  the  substantial  parties 
are  two  corporations,  and  both  citizens  of  the  State,  the 
cause  cannot  be  removed. 5  So  if  both  parties  become 
citizens  of  the  same  State  prior  to  the  filing  of  the  peti- 
tion, the  cause  cannot  be  removed. 6  A  defendant  cannot 
remove  the  cause  where  he  became  a  citizen  of  another 
State  after  the  bringing  of  the  suit.'  All  the  plaintiffs 
must  be  citizens  of  the  State  where  suit  is  brought,  and 
non-resident  plaintiffs  cannot  remove  wholly  nor  as  to 
themselves.  8  If  citizens  of  different  States  unite  as  plaint- 
iffs, defendant,  although  a  citizen  of  another  State, 
cannot  remove  the  cause;  9  nor  in  such  case  can  plaintiffs 
remove.i"^  Kor  can  the  suit  be  removed  if  a  citizen  of  the 
State  joins  with  a  citizen  of  another  State;  ^  so  if  there 
are  several  plaintiffs,  and  one  of  them  is  not  a  citizen  of 
the  State,  it  cannot  be  removed;!^  and  a  suit  in  which  a 
citizen  of  the  State  is  plaintiff  and  a  domestic  corpora- 
tion and  two  citizens  of  another  State  are  joint  defend- 
ants is  not  removable. 13  The  Act  of  1867  does  not  apply 
where  the  cause  of  removal  is  alienage  ;!■*  so  an  alien 
defendant  is  not  within  this  clause,i5  and  if  plaintiff  is  an 


§   10  p  GROCND    OF  REMOVAL.  132 

alien,  defeudent  cannot  remove;  ^^  or  if  botli  parties  are 
citizens  of  States  other  than  where  suit  is  brought.i^  So 
u  citizen  of  the  District  of  Columbia  cannot  remove  a 
suit  into  the  Federal  court. is  Under  the  Judiciary  Act, 
§  12,  to  authorize  a  removal,  the  citizenship  of  each  of  the 
defendants  must  be  such  as  to  make  his  suit  removable. i^ 
Under  the  Acts  of  1806,  1867,  it  is  sufficient  that  the 
defendant  applying  for  is  at  the  time  of  filing  his  peti- 
tion a  citizen  of  another  State,  and  the  plaintiff  a  citizen 
of  the  State  where  suit  is  brought.20  But  if  defendant 
had  been  a  resident  of  the  State  at  the  time  of  the  pas- 
sage of  those  acts,  the  case  is  different.^i  In  an  action 
ex  contractu,  where  there  were  three  defendants,  two 
non-residents  and  a  third  a  citizen  of  the  State  where 
suit  was  brouglit,  it  could  not  be  removed  by  the  two 
non-residents. --2  Each  defendant  must  be  a  resident  of 
a  different  State  from  the  plaintiff's  State; 23  so  where 
the  removal  of  the  whole  suit  was  sought,  and  not  the 
suit  as  to  the  non-residents  under  the  Act  of  1866.2-1  go 
the  grantor  of  a  deed  cannot,  under  the  Act  of  1866, 
remove  a  suit  to  foreclose  a  deed,  leaving  the  trustee,  his 
co-defendant,  in  the  State  court;  25  and  so  of  a  garnishee 
or  trustee  joined  as  defendant. 26  Under  the  Act  of  1867 
one  of  several  defendants,  a  non-resident,  cannot 
remove  unless  the  others  are  improper,  formal,  or  un- 
necessary parties.2^  A  mere  voluntary  intervenor  can- 
not remove  the  cause; 2s  and  so  of  stockholders  of  a 
corporation ;  29  but  one  not  sued  but  brought  into  the  suit 
as  warrantor,  on  motion  of  the  defendant,  has  the  right  to 
remove,  as  in  the  case  of  a  landlord,  where  the  tenant  is 
defendant.3o 

1  Sands  V.  Smith,  1  Dill.  IRO. 

2  Sands  V.  Smith,  1  Dill.  liiO;  doubted,  Sewing  Mach.  Cos.'  Cas.  18 
Wall.  553. 

3  Hurst  V.  Railroad  Co.  93  U.  S.  7i. 

4  Knapp  V.  Troy  &  B.  R.  R.  Co.  20  Wall.  124. 

5  W.  A.  &  G.  R.  Co.  V.  A.  &  W.  R.  R.  Co.  19  Gratt.  592. 

6  Laird  v.  Conn.  &  P.  Riv.  R.  R.  Co.  55  N.  H.  375. 


133  GROUND   OF   REMOVAL.  §  10  q 

7  Dart  v.  Walker,  4  Daly,  188;  S.  C.  43  How.  Pr.  29;  Indiana  B.  & 
W.  R.  R.  Co.  V.  Kisley,  .50  Iiul.  60;  Tapley  v.  Martin,  116  Mass.  275; 
Dustin  V.  Dickinson,  2  Mich.  N.  P.  6.  Contra:  Jolinson  v.  Monell,  1 
Woolw.  390;  Cook  v.  WMtney,  3  Woods,  715. 

8  Bliss  V.  Rawson,  43  Ga.  181. 

9  Bryant  v.  Scott,  67  N.  C.  391. 

10  Bliss  V.  Rawson,  43  Ga.  181;  Beery  f.  Irick,  22  Gratt.484;  Martin 
V.  Coons,  24  La.  An.  169. 

11  Goodrich  v.  Hunton,  29  La.  An.  372;  Upton  v.  New  Jersey  S.  R. 
R.  Co.  25  N.  .J.  Eq.  37:^;  Case  v.  Donglass,  1  Dill.  299;  Fisk  v.  Chicago, 
R.  I.  &  P.  R.  R.  Co.  53  Barb.  472;  Hazard  v.  Durant,  9  R.  I.  602. 

12  Case  V.  Douglass,  1  Dill.  299;  Fisk  v.  Chicago,  R.  I.  &  P.  R.  R. 
Co.  53  Barb.  472;  Hazard  v.  Durant,  9  R.  I.  602;  Merwiu  v.  Wexel,  49 
How.  Pr.  115. 

13  Howland  etc.  Works  v.  Brown,  13  Bush,  681. 

14  Crane  v.  Reeder,  28  Mich.  527. 

15  Sewing  Mach.  Cos.'  Cas.  18  Wall.  .553;  S.  C.  110  Mass.  70;  Crane  v. 
Reeder,  28  Mich.  527;  Davis  v.  Cook,  9  Nev.  134. 

16  Knickerbocker  L.  Ins.  Co.  v.  Gerbach,  70  Pa.  St.  150. 

17  Insurance  Co.  v.  Francis,  11  Wall.  210;  Hurst  v.  Railroad  Co.  93 
U.  S.71;  Anier.  Bible  Soci.  v.  Grove,  101  U.  S.  610. 

18  Cissel  V.  McDonald,  16  Blatchf.  150;  Hepburn  v.  Ellzey,  2 
Cranch.  445;  Westcott  v.  Fairfield,  Peters  C.  C.  45;  New  Orleans  r. 
Winter,  1  Wheat.  91;  Vape  v.  Mifflin,  4  Wash.  C.  C.  519;  Picquet  v. 
Swan,  5  Mason,  35;  Barney  v.  Baltimore,  6Wall.280. 

19  Shelby  v.  Hoffman,  7  Ohio  St.  453;  Citing  Hubbard  v.  Northern 
R.  R.  Co.  25  Vt.  715;  Board  of  Foreign  Missions  v.  McMaster,  4  Am. 
Law  Reg.  529;  Welch  v.  Tennent,  4  Cal.  203. 

20  McGinnity  v.  White,  3  Dill.  350. 

21  Dart  V.  Walker,  4  Daly,  188. 

22  Sewing  Mach.  Cos.'  Cas.  18  Wall.  553;  S.  C.  110  Mass. 

23  Fairchild  v.  Durand,  8  Ahb.  Pr.  305,  See  Bixby  v.  Couse,  8 
Blatchf.  73. 

24  Vannevar  v.  Bryant,  21  Wall.  41. 

25  Gardner  t'.  Brown,  21  Wall.  36;  Coal  Co.  v.  Blatchf.  11  Wall.  172. 

26  Weeks  v.  Billings,  55  N.  H.  371. 

27  Cooket'.  State  Nat.  Bk,  52  N.  Y.  96. 

28  Williams  v.  Williams,  24  La.  An.  55. 

29  W.  A.  &  G.  R.  R.  Co.  v.  A.  &  W.  R.  R.  Co.  19  Graft.  592. 

30  Greener.  Klinger,  10  Fed.  Rep.  689;  and  see  In  Re  Iowa  &  M. 
Const.  Co.  10  Fed.  Rep.  401;Healeyt>.  Prevost,  6  Week.  No.  579. 

§  10  q.  Righttoremove.— The  right  to  remove,  under 
Revised  Statutes,  §  639,  attaches  in  every  case  (1)  where 
the  controversy  is  between  citizens  of  different  States;  (2) 
where  the  matter  in  dispute  exceeds  S500,  exclusive  of 
costs;  (3)  under  the  Act  of  1867,  the  citizen  of  such  other 
State  must  file  the  required  affidavit  as  to  local  prejudicej 
Desty  Removal.— 13. 


§   10  q  GROUND   OF   REMOVAL  134 

and  (4)  lie  must  giA'e  tlie  required  security  for  his  appear- 
ance. ^  It  must  appear  that  the  contest  in  the  suit  is  be- 
tween citizens  of  different  States. 2  The  right  depends  on 
the  citizenship  of  the  persons  who  are  parties  to  the 
record,  although  others  have  an  interest  in  the  suit,3  or  on 
foreign  citizenship  or  alienage. ^  Under  the  Act  of  1866 
the  suit  must  be  brought  by  a  citizen  of  the  State  in  which 
it  is  i^ending ; »  for  if  brought  by  a  citizen  of  another 
State,  or  an  alien,  it  cannot  be  removed;  6  and  taking  out 
letters  of  administration  will  not  make  him  a  citizen;  ■*  and 
if  defendant  was  a  citizen  at  the  commencement  of  the 
suit,  he  cannot,  by  becoming  a  citizen  of  another  State, 
acquire  the  right  to  remove. §  This  section  has  no  refer- 
ence to  a  case  where  one  of  the  defendants  is  an  alien, 
and  the  others  are  citizens  of  another  State,  and  none,  or 
none  served,  are  citizens  of  the  State  where  suit  is 
brought .9  Under  the  Act  of  1866  a  plaintiff  has  no  right 
to  remove  the  cause;  ^  the  right  is  confined  to  the  alien 
or  non-resident  defendant;  11  it  applies  only  where  there 
are  two  defendants,  one  of  whom  is  a  citizen  of  another 
State  or  an  alien. 12  If  a  defendant  is  sued  jointly  with 
others,  he  may  remove,  though  he  afterwards  becomes 
sole  defendant.  13  If  the  defendants  are  entitled  to  sever, 
those  only  need  unite  in  the  petition  who  are  entitled  to 
remove,!-*  and  the  cause  will  be  removed  only  as  to  the 
defendant  who  petitions. is  On  a  joint  application  the  re- 
moval may  be  granted  to  one  and  denied  as  to  the  other.is 
The  right,  if  claimed  by  the  mode  prescribed,  depends  on 
the  case  disclosed  by  the  pleadings  ;i"  and  equitable  de- 
fenses will  not  prevent  a  removal. is 

1  Joliiison  V.  Monell,  1  Woolw.  390.  Under  the  Act  of  1875,  the  affi- 
davit of  local  prejudice  is  not  necessary :  Allen  v.  Ryerson,  2  Dill.  501. 

2  Welch  V.  Tennent,  4  Cal.  203;  Greely  v.  Towusend,  25  Cal.  604. 

3  Eobb  V.  Parker,  3  Rich.  N.  S.  60. 

4  Fislc  V.  Union  P.  R.  R.  Co.  6  Blatchf.  364. 

5  Amory  v.  Araory,  95  U.  S.  186;  Sands  v.  Smith,  1  Dill.  290;  Fisk  v. 
Chicago,  R.  I.  &  P.  K.  R.  Co.  53  Barb.  472. 

6  Amory  v.  Amory,  95  U.  S.  186;  Sands  v.  Smith,  1  Dill.  290;  Fisk  r. 
Chicago,  R.  I.  &  P.  R.  R.  Co.  53  Barb.  472;  Knickerbocker  L.  Ins.  Co.  v. 
Gerbach.  70  Pa.  St.  160. 


135  PROCEEDINGS.  §  11 

7  Amory  v.  Amory,  95  U.  S.  186. 

8  Dart  v.  "Walker,  43  How.  Pr.  29.  But  see  McGinuity  v.  White,  3 
Dill.  350. 

9  Davis  V.  Cooli,  9  Nev.  134. 

10  Sands  v.  Smith.  1  Dill.  290;  hut  under  the  Act  of  1875,  either  par- 
ty may  remove,  all  forming  tne  party  on  one  side  being  citizens  of 
different  States  from  those  on  the  other:  Ruble  v.  Hyde,  3  Fed.  liep. 
S30. 

11  Sew.  Mach.  Cos.'  Cas.  18  Wall.  553;  S.  C.  110  Mass.  70. 

12  George  v.  Pilcher,  28  Graft.  299;  Davis  v.  Cook,  9  Nev.  134;  Good- 
rich V.  Hu'nton,  29  La.  An.  372;  Fairchild  i'.  Duraud,8  Abb.  Pr.  305. 
See  Schwab  v.  Hudson,  11  Ch.  L.  N.  372;  Cissel  v.  McDonald,  16 
Blatchf.  150. 

13  Yulee  v.  Vose,  99  U.  S.  539;  S.  C.  64  N.  Y.  449. 

14  Lewis  V.  White,  7  Ch.  L.  N.  116. 

15  Wormser  v.  Dahlman,  16  Blatchf.  319;  S.  C.  57  How.  Pr.  286. 

16  Dart  v.  Walker,  4  Daly,  188. 

17  Barney  v.  Latham,  103  U.  S.  205. 

18  Tarver  v.  Ficklin,  60  Ga.  373. 

§11.  Removal  proceedings.— 77ia«  lohenever  either 
party,  or  any  one  or  more  of  the  plaintiffs  or  defendants 
entitled  to  remove  any  suit  mentioned  in  the  next  preceding 
section,  shall  desire  to  remove  such  suit  from  a  State  court  to 
the  circuit  court  of  the  United  States,  he  or  they  may  mal-e 
and  file  a  petition  in  such  suit  in  such  State  court,  before  or 
at  the  term,  at  which  said  cause  coidd  he  first  tried,  and  before 
the  trial  thereof ,  for  the  removal  of  such  suit  into  the  circuit 
court  to  be  held  in  the  district  where  such  suit  is  pending; 
and  shall  make  and  file  therewith  a  bond,  loith  good  and 
sufficient  surety  for  his  or  their  entering  in  such  circuit 
court,  on  the  first  day  of  its  then  next  session,  a  copy  of  the 
record  in  such  suit,  and  for  paying  all  costs  that  may  be 
awarded  by  the  said  circuit  court,  if  said  court  shall  hold 
that  such  suit  was  lorongfully  or  improperly  removed  thereto, 
and  also  for  there  appearing  and  entering  special  bail  in  such 
suit,  if  special  bail  loas  originally  requisite  therein;  it  shall 
then  be  the  duty  of  the  State  court  to  accept  said  petition  and 
bond,  and  proceed  no  farther  in  such  suit,  and  any  bail  that 
may  have  been  originally  taken  shall  be  discharged ;  and  the 
said  copy  being  entered  as  aforesaid  in  said  circuit  court  of 
the  United  States,  the  cause  shall  then  proceed  in  the  same 


§  11  a  PROCEEDINGS.  136 

manner  as  if  it  had  been  originally  commenced  in  the  said 
circuit  court ;  and  if  in  any  action  commenced  in  a  State 
court  the  title  of  land  he  concerned,  and  the  parties  are 
citizens  of  the  same  State,  and  the  matter  in  dispute  exceeds 
the  sum  or  value  of  fice  hundred  dollars,  exclusive  of  costs, 
the  sum  or  value  being  made  to  appear,  one  or  more  of  the 
plaintiffs  or  defendants,  before  the  trial,  may  state  to  the 
court,  and  make  affidavit  if  the  court  require  it,  that  he  or 
they  claim  and  shall  rely  upon  a  right  or  title  to  the  land 
tinder  a  grant  from  a  State,  and  produce  the  original  grant  ^ 
or  an  exemplification  of  it,  except  where  the  loss  of  public 
records  shall  put  it  out  of  his  or  their  power,  and  shall  move 
that  any  one  or  more  of  the  adverse  party  inform  the  court 
whether  he  or  they  claim  a  right  or  title  to  the  land  under  a 
grant  from  some  other  State,  the  party  or  parties  so  required 
shall  give  such  information,  or  otherioise  not  be  allowed  to 
plead  such  grant  or  give  it  in  evidence  upon  the  trial ;  and 
if  he  or  they  inform  that  he  or  they  do  claim  under  such 
grant,  any  one  or  more  of  the  party  moving  for  such  infor- 
mation may  then,  on  petition  and  bond,  as  hereinbefore  men- 
tioned in  this  act,  remove  the  cause  for  trial  to  the  circuit 
court  of  the  United  States  next  to  be  holden  in  such  district ; 
and  any  one  of  either  party  removing  the  cause  shall  not  be 
allowed  to  plead  or  give  evidence  of  any  other  title  than  that 
by  him  or  them  stated  as  aforesaid  as  the  ground  of  his  or 
their  claim,  and  the  trial  of  issues  of  fact  in  the  circuit  courts 
shall,  in  all  suits  except  those  of  equity  and  of  admiralty  and 
maritime  jurisdiction,  be  by  jury. 
Act  of  March  3,  1875,  §  3. 

§  11  a.  Application.— A  case  cannot  be  removed  on 
a  mere  stipulation.!  Neither  an  Infant  nor  his  guardian 
can  consent  to  a  removal,2  as  consent  will  not  confer 
jurisdiction,3  nor  can  a  removal  be  effected  by  filing  the 
petition  and  bond,  without  any  action  of  the  court.4  The 
application  does  not  constitute  a  waiver  of  the  use  and 
service  of  proper  papers.^    A  party  seeking  a  removal 


137  PROCEEDINGS.  §  11  b 

must  do  all  that  is  necessary  to  secure  it;^  and  the  dis- 
cretion of  the  court  in  passing  on  the  question  as  to  the 
necessary  steps  being  i^roperly  taken  is  a  legal  discre- 
tion J  The  case  is  removable,  though  erroneously  applied 
for  under  the  provisions  of  §639,  Revised  Statutes.  ^  A 
notice  of  the  application  is  not  necessary .9  The  State 
rourt  cannot  cause  the  applicatiora  to  be  entered  nunc 
pro  tunc,  so  as  to  entertain  a  notion  for  removal. i"  A 
party  does  not  lose  his  riglit  to  insist  on  a  removal,  by  a 
voluntary  appearance;  11  but  proceeding  to  trial  without 
calling  the  attention  of  the  court  to  the  petition  and  bond 
for  removal  is  deemed  a  waiver  of  the  right.i-^  The  til- 
ing of  a  petition  for  removal  is  a  sufficient  application.  13 

1  Kingsbury  v.  Kingsbury,  3  Biss.  60. 

2  Kingsbury  v.  Kingsbiu-y,  3  Biss.  60. 

3  Re  Hopkins,  18  Bank  Reg.  339. 

4  Scott  V.  Otis,  10  Ch.  L.  N.  41. 

5  Parrott  v.  Alabama  Gold  L.  Ins.  Co.  5  Fed.  Itep.  391. 

6  Clippinger  v.  Mo.  Val.  L.  Ins.  Co.  1  Flippen,  456. 

7  Hatch  V.  Chicago,  K.  I.  etc.  E.  K.  Co.  6  Blatchf.  105. 

8  Norris  t- .  Mineral  Point  TunneU,  7  Fed.  Eep.  272. 

9  McLean  v.  Chicago  etc.  B.  R.  Co.l9 Blatchf.  319;  Stevens  v.  Rich- 
ardson, 9  Fed.  Rep.  pjl.  Contra:  Bristol  v.  Chapman,  34  How.  Pr. 
140;  Distrow  v.  Driggs,  8  Abb.  Pr.  305,  note. 

10  Ward  v.  Arredondo,  1  Paine,  410. 

11  Stevens  r.  Richardson,  9  Fed.  Rep.  191. 

12  Home  Ins.  Co.  v.  Curtis,  3J  Mich.  402. 

13  La  Mothe  Manuf.  Co.  v.  Nat.  Tube  Works,  15  Blatchf.  432. 

§  lib.  Petition. — A  petition  is  a  request  in  writing 
in  contradistinction  to  a  motion  which  may  be  made 
viva  voce.^  The  office  of  the  petition  is  to  set  on  foot 
proceedings  to  obtain  a  removal.  It  must  contain  such 
averments  as  entitle  to  relief,^  and  such  as  are  positive, 
and  express  the  facts  on  which  it  depends,  and  not  argu- 
mentative.3  It  should  point  out  what  the  question  is, 
and  how  and  where  it  will  arise,-*  and  state  such  facts  as 
show  to  the  court  that  the  case  falls  within  the  category 
of  removable  causes. ^  The  petition  must  set  forth  the 
jurisdictional  facts.^    The  facts  upon  which  the  petitioner 


§  11  b  PROCEEDINGS.  138 

bases  his  right  must  he  made  to  appear,  hut  no  particu- 
lar mode  is  prescribed.  It  may  he  by  admission  of 
parties,  by  affidavit,  or  by  the  testimony  of  witnesses;" 
but  where  the  petition  fails  to  show  that  the  case  is  re- 
movable, the  court  should  deny  the  application. 8  The 
right  of  removal  is  statutory,  and  the  party  applying 
must  show  upon  the  record  that  the  case  is  one  which 
comes  within  the  provisions  of  the  statute.^  The  petition 
Avhen  liled  becomes  part  of  the  record.  It  should  state 
facts  which,  taken  in  connection  with  such  as  already 
appear,  entitle  him  to  a  removal. ^'^  Where  the  fact  of 
non-residence  svifficiently  appears  on  the  record,  it  need 
not  be  shown  by  petition. ^  It  is  necessary  to  show  as 
well  that  suit  was  commenced  "  by  a  citizen  of  a  State  in 
which  the  suit  is  brought,"  as  that  it  was  commenced 
"against  a  citizen  of  another  State";  12  so  stating  that 
plaintiff  "is  a  citizen"  is  insufficient ;13  go  an  averment 
that  he  is  a  resident  of  the  State  is  not  sufficient.i^  That 
a  corporation  was  formed  under  the  laws  of  a  State,  and 
is  a  resident  thereof,  is  sufficient. ^-5  Where  the  petition 
states  that  the  plaintiffs  "as  executors"  are  citizens  of 
the  State,  it  is  insufficient  as  to  personal  citizenship.^s 
That  petitioner  is  not  a  resident  of  the  State  is  not  suffi- 
cient for  the  expression  of  non-resident, i'  nor  is  a  mere 
averment  that  petitioner  is  an  alien  or  a  citizen  of  anoth- 
er State;  18  i^ut  an  averment  that  the  defendent  is  a 
citizen  of  the  southern  district  of  Alabama  is  a  sufficient 
averment  of  citizenship  of  Alabama  ;19  but  the  allegation 
that  the  plaintiff  is  a  citizen  of  a  certain  county  is  not 
sufficient  allegation  of  citizenship.20  The  petition  must 
state  the  citizeushii)  of  the  parties,  unless  it  sufficiently 
appears  on  the  record.-i  The  averment  that  certain  of 
the  petitioners,  "as  they  are  the  qualified  executors," 
were  and  are  citizens,  is  an  averment  of  their  personal 
citizenship.-^  But  under  the  Act  of  1875  the  petitioner 
need  not  state  that  plaintiff  was  at  the  date  of  the  com- 
mencement of  the  suit  a  citizen  of  a  State  otlier  than  that 


139  PROCEEDINGS.  §  11  b 

of  which  defendant  is  a  citizen,  if  the  requisites  of  citi- 
zenship exist  at  the  time  of  filing  the  petition. 23  it  is 
otherwise  under  the  Judiciary  Act,  where  it  must  he 
affirmatively  shown  that  the  requisite  citizenship  existed 
at  the  commencement  of  the  action.-^  The  petition  of 
an  intervenor  is  sufficient  if  it  avers  citizenship  in  the 
present  tense. 25  The  omission  to  state  that  j^laintiff  is  a 
citizen  of  the  State  where  suit  is  brought  may  be  sup- 
plied subsequently.26  "Where  all  the  plaintiffs  have  the 
requisite  citizenship,  any  one  interested  may  move,  but 
the  petition  must  set  out  all  the  facts; 2'  and  under  the 
Judiciary  Act,  all  must  join  in  the  petition. 28  Where  the 
removal  is  sought  on  the  ground  of  citizenship,  the  peti- 
tion must  allege  that  all  the  defendants  uniting  are  of  a 
different  citizenship  from  the  plaintiffs.29  It  is  no  ob- 
jection that  the  petition  and  bond  are  not  signed  by  the 
petitioner.30  They  may  be  signed  and  verified  by  an 
agent  or  attorney. si  Nor  need  the  petition  be  filed  per- 
sonally.32  An  application,  under  the  Act  of  1867,  may 
be  made  by  a  corporation  of  another  State  through  its 
authorized  agent  or  attorney,33  but  under  the  Judiciary 
Act  it  is  not  sufficient  that  the  petition  be  signed  by  its 
attorney  at  law.3^  The  petition  need  not  be  sworn  to; 
the  statiite  does  not  expressly  require  the  petition  to  be 
verified  by  affidavit;  the  mere  filing  of  the  petition  and 
bond  removes  it  ijyso  facto. ^^  If  made  on  notice,  and  the 
averments  are  not  denied,  it  will  be  taken  as  true,  and 
proof  may  be  adduced  if  the  averments  are  denied.^o 
When  the  facts  set  forth  on  a  petition  make  a  case,  a 
mistake  in  referring  to  the  statute  is  unimportant  ;37  and 
wliere  a  petition  was  founded  on  the  Act  of  1867,  and  did 
not  show  a  right  under  that  act,  but  did  show  a  cause 
within  the  Act  of  1866,  it  was  sufficient  under  the  Act  of 
1866.33  But  under  the  Judiciary  Act  the  exact  language 
of  the  statute  should  be  followed  in  stating  the  grounds.39 
The  omission  to  refer  to  any  special  law  under  which  the 
removal  is  demanded  cannot  prejudice  the  right ;-*o  and  a 


§  11  b  PROCEEDINGS.  140 

case  is  removable,  altbougb  erroneously  prayed  under 
the  statute;  •*!  but  where  the  prayer  of  the  petition  does 
not  ask  for  the  removal  of  the  entire  suit,  the  cause  will 
be  remanded.42  An  exception  to  the  jurisdiction,  and  a 
prayer  that  the  action  be  dismissed,  is  not  a  proper  peti- 
Tion.-53  \  second  petition  does  not  constitute  an  aban- 
donment of  the  tirst;^*  but  if  a  case  has  been  once 
removed,  and  then  remanded  because  insufficient,  the 
party  cannot  file  a  second  petition.^s  if  a  petition  be  de- 
fective, it  may  be  amended,  as  a  matter  of  right  ;46  and  if 
not  verified,  a  verified  petition  may  be  filed.^^  A  veri- 
fied i)etitiou  must  state  that  defendants  have  a  defense 
arising  under  and  by  virtue  of  the  Constitution,  treaty,  or 
law  of  the  United  States.^s  The  jietition  may  be  filed  in 
vacation.^'-* 

1  Sbaft  V.  Phoenix  M.  L.  Ins.  Co.  67  N.  Y.  544. 

2  De  Camp  v.  N.  J.  M.  L.  Ins.  Co.  2  Sweeney,  481. 

3  Brown  v.  Keene,  8  Peters,  112;  citing  Bingham  v.  Cabbot,  3  Dall. 
19,  382;  Abercrombie  v.  Dupuis.  7  Craucn,  343;  Wood  v.  Wagnor,  2 
Cranch,  9;  Capron  v.  Tan  Noorden,  2  Cranch,  126. 

4  Trafton  v.  Nougues,  4  Sawy.  173. 

5  In  re  Anderson,  3  "Woods,  124;  McMurdy  v.  Ins.  Co.  4  Week.  Ins. 
Cas.  18:  Tunstall  v.  Madison  Parish,  30  La.  An.  471;  Lalor  v.  Dun- 
ning, 56  How.  Pr.  209. 

6  Smith  V.  Horton,  7  Fed.  Rep.  270. 

7  People  V.  Superior  Court,  34  ni.  356. 

8  Weed  Sewing  Machine  Co.  v.  Smith,  71  111.  204;  U.  S.  Sav.  Inst. 
V.  Brockschmidt,  72  111.  370;  New  Orleans  etc.  Co.  v.  Recorder  etc.  27 
La.  An.  291;  McWhinney  v.  Brooke,  64  lud.  360;  Liverpool  Ins.  Co.  v. 
McGiiire,  52  Miss.  227;  Hartford  F.  Ins.  Co.  r.  Green,  52  Miss.  332; 
Blair  r.  West  Point  etc.  Co.  7  Neb.  146. 

9  Amory  v.  Amory,  95  U.  S.  186. 

10  Amory  v.  Ajiiory,  95  U.  S.  186.  See  New  Orleans  etc.  R.  R.  Co. 
V.  Mississippi,       U.  S. 

11  Bondurant  v.  Walson,  2  Morr.  Trans.  479. 

12  Holden  v.  Putnam  F.  Ins.  Co.  46  N.  Y.  1. 

13  Holden  v.  Putnam  F.  Ins.  Co.  46  N.  Y.  1. 

14  Parker  r.  Overman.  18  How.  137;  Darst  v.  Bates.  51  111.  439;  Corp. 
V.  Vermilye,  3  Johns.  143;  Martin  v.  Coons,  24  La.  An.  169;  Beebe  ». 
Armstrong,  11  Mart.  440. 

15  Pwathbone  Oil  Tract  Co.  v.  Bauch,  5  W.  Va.  79. 

16  Amory  v.  Amory,  95  U.  S.  186. 

17  Easton  v.  Rucker,  1  Marsh.  J.  J.  232. 

18  Welch  V.  Tennent,  4  Cal.  203;  Savings  Bank  v.  Benton.  2  Met. 
CKy.)  240. 


141  PROCEEDINGS.  §  11  b 

19  Berlin  v.  Jones,  1  Woods,  638. 

20  Pechner  v.  Phoenix  Ins.  Co.  95  U.  S.  183;  Carswell  v.  Schley,  59 
Ga.  17.    But  see  Stoker  v.  Leavenworth,  7  La.  390. 

21  Insurance  Co.  v.  Francis,  11  Wall.  210;  Welch  v.  Tennent,  4  Cal. 
203;  Harrison  v.  Shorter,  5)  Ga.  112;  Insurance  Co.  v.  McGuire,  52 
Miss.  227;  Hartford  F.  Ins.  Co.  v.  Green,  52  Miss.  332;  Phoenix  L.  Ins. 
Co.  t;.  Saettel,  33  Ohio  St.  278;  Savings  Bank  v.  Benton,  2  Met.  (Ky.) 
240. 

22  Cooke  V.  Seligman,  7  Fed.  Rep.  263. 

23  McLean  v.  St.  Paul  etc.  E,.  R.  Co.  16  Blatchf .  309.  See  also  Jack- 
son V.  Mutual  Ins.  Co.  3  Woods,  413;  S.  C.  60  Ga.  423;  Johnson  v. 
Monell,  Woolw.  390;  McGinnity  v.  White,  3  Dill.  350. 

24  Weed  Sew.  Rlach.  Co.  v.  Smith,  71  HI.  204;  Beehe  v.  Cheenev,  11 
The  Reporter,  360;  Ins.  Co.  r.  Pechner.  95  U.  S.  183;  S.  C.  6  Lans. 
411;  SavhigsBank  r. Benton, 2  Met. (Ky.) 240;  U.S.  Sav.Inst.  v.Brock- 
schmidt,72  III.  370;  Indiana  B.  &  W.  H.  Co.  v.  Risley,  50  Ind.  60:  Holden 
V.  Putnam,  46  N.  Y.  1 ;  Kaeiser  v.  Illinois  Cent.  R.  R.  Co.  6  Fed.  Rep.  1. 
But  see  People  v.  Superior  Court,  34  111.  356. 

25  Burdick  v.  Peterson,  6  Fed.  Rep.  840. 

26  Field  v.  Blair,  1  Code  Reporter,  N.  S.  361. 

27  Carswell  v.  Schley,  59  Ga.  17. 

28  Fallis  V.  McArthur,  1  Bond,  100;  Vandervoort  v.  Palmer,  4  Duer, 
677;  Calderwood  v.  Hager,  20  Cal.  167;  Norton  ?;.  Hayes,  4  Denio,245; 
Bryan  v.  Ponder,  23  Ga.  480;  W.  A.  &,  G.  R.  R.  Co.  v.  C.  &  W.  R.  B.  Co. 
19  Gratt.  592 ;  Davis  v.  Cook,  9  Ne v.  134 ;  Pugsley  t).  F.  S.  &  T.  Co.  2  Tenn. 
Ch.  130. 

29  Chester  v.  Chester,  7  Fed.  Rep.  1 ;  Smith  v.  Horton,  11  The  Re- 
porter, 423;  Meyer  v.  Delaware  Coustr.  Co.  100  U.  S.  457. 

30  Vandervoort  v.  Palmer,  4  Duer,  677.  Contra:  Kirknatrick  v. 
Hopkins, 2  Miles,  277;  Best  v.  N.  Y.  L.  Ins.  Co.  2  Cin.  Rep.  329;  Meyer  v. 
Delaware  K.  Co.  100  U.  S.  457. 

31  McLean  v.  Chicago  etc.  R.  R.  Co.  16  Blatchf.  309;  Cooke  v.  Selig- 
man, 7  Fed.  Rep.  2H3;  Dennis  v.  Alachua  Co.  3  Woods,  683;  Vander- 
voort V.  Palmer,  4  Duer,  677;  Wormser  v.  Kline,  57  How.  Pr.  286;  Kos- 
enfield  v.  Adams  Express  Co.  21  La.  An.  233;  Sweeney  v.  Coffin,  I 
Dill.  73. 

32  Fisk  V.  Fisk,  4  Martin  N.  S.  676;  Cooke  v.  SeUgman.  7  Fed.  Kep. 
263. 

33  Fisk  V.  Fisk,  4  Martin  K  S.  676;  Dennis  v.  Alachua  Co,  3  Woods, 
683;  Wormser  v.  Kline,  57  How.  Pr.  286;  Mix  v.  Andes  Ins.  Co.  74  N.  Y. 
53;  Vandervoort  v.  Palmer,  4  Duer,  677;  Shaft  v.  Phoenix  Life  Ins.  Co. 
67  N.  Y.  544;  Meyer  v.  Del.  R.  Co.  100  U.  S.  457. 

34  Kirkpatrick  v.  Hopkins,  2  Miles,  277. 

35  Allen  v.  Ryerson,  2  Dill.  501 :  Connor  v.  Scott,  4  Dill.  242;  Bowen 
V.  Chase,  7  Blatchf.  255;  Sweenev  v.  Coffin.  1  Dill.  73;  Merchants'  etc. 
Bank  v.  Wheeler,  3  Cent.  L.  J.  13;  Houser  v.  Clayton,  3  Woods,  373; 
Osgood  V.  C.  D.  &  V.  R.  Co.  6  Biss.  330. 

36  De  Camp  v.  N.  J.  M.  L.  Ins.  Co.  2  Sweeney,  481. 

37  Norris  I'.  Mineral  Point  Tun.  Co.  11  The  Reporter,  693;  Dart  r. 
Walker,  43  How.  Pr.  29;  Minnett  v.  M.  &  St.  P.  R.  Co,  3  Dill.  460; 
Stanley  v.  Chicago,  II.  I.  &  P.  R.  Co.  62  Mo.  508;  Goodrich  v.  Hunton, 
29  La.  An.  372. 

38  Dart  v.  Walker,  4  Daly,  188. 

39  Railway  Co.  v.  Ramsey,  22  Wall.  323. 


§   11  C  PROCEEDINGS.  142 

40  Goodrich  v.  Hunton,  29  La.  An.  372. 

41  Norris  v.  :Mineral Point  Tunnel,  7  Fed.  Eep.  272. 

42  Clark  v.  Chicago,  M.  &  St.  P.  R.  R.  Co.  11  Fed.  Rep.  355;  Sweet 
r.  Same,  11  Fed.  Hep.  355. 

43  Webre  v.  Duroc,  15  La.  An.  65. 

44  Tunstall  V.  Madison,  30  La.  An.  471. 

45  Eastin  v.  Rucker,  1  Marsh.  J.  J.  232. 

46  Delaware  Eiv.  C.  Co.  v.  D.  &  St.  P.  R.  R.  Co.  46  Iowa,  400;  Houser 
V.  Clayton,  3  Woods,  2T3. 

47  Houser  v.  Clayton,  3  Woods,  273. 

48  Osborn  v.  U.  S.  Bank,  9  Wheat.  738. 

49  Osgood  V.  C.  D.  &  V.  R.  R.  Co,  6  Biss.  330. 

§  11  c.  Bond  and  security.— Under  the  Judiciary- 
Act  tbe  defendant  must  give  several  or  joint  and  several 
tonds,  and  not  joint  bonds;!  but  under  tbe  Act  of  1875, 
"good  and  sufficient  surety"  is  all  that  is  required. 2  The 
Act  of  1867  only  requires  the  offer  of  "good  and  sufficient 
surety,"  the  surety  to  bind  himself  in  Avriting.  The  form 
is  immaterial.3  So  a  stipulation  in  the  nature  of  a  recog- 
nizance is  sufficient."*  The  penalty  must  be  sufficient  to 
indemnify  for  delay  or  failure  to  comply  with  its  terms.s 
and  a  penalty  of  one  thousand  dollars  will  be  deemed  suf- 
llceut,  if  defendant  has  not  been  held  to  bail.^  Where 
the  bond  did  not  contain  the  conditions  required  by  the 
Act  of  1875,  and  the  penal  sum  was  left  blank  in  non-com- 
pliance with  the  Act  of  1867,  the  case  was  remanded.'' 
The  security  must  be  offered  at  the  time  of  filing  the  peti- 
tion.*  Under  the  Judiciary  Act  the  securities  must  be 
offered  at  the  time  of  the  party's  appearance.^  The  juris- 
diction of  the  Federal  court  does  not  dei)end  on  the  form 
or  substance  of  the  bond,  if  the  statute  in  the  other  re- 
spects has  been  complied  with;  10  and  the  petition  need 
not  contain  an  offer  to  give  the  security. i^  If  the  peti- 
tioner fails  to  file  his  bond,  the  case  remains  in  the  State 
court,!-  and  the  bond  need  not  be  filed  till  the  security  is 
accepted.i3  The  petitioner  need  not  execute  the  bond,i* 
but  the  attorney  of  the  petitioner  may  sign  for  him.^^  If, 
however,  he  does  not  sign,  he  must  explain  his  reasons 
fur  not  doing  so.ic    if  the  bond  be  signed  by  strangers 


143  PROCEEDINGS.  §   11  C 

only,  and  there  is  no  proof  of  their  solvency,  there  will  be 
no  error  in  refusing  to  transfer  the  cause. i"  The  State 
court  may  investigate  the  value  of  the  sureties, ^s  and 
judge  of  their  sufficiency. ^^  It  must  determine  whether 
the  surety  is  "  good  and  sufficient,"  may  determine  the 
amount,  and  whether  it  should  be  joint  or  joint  and  sev- 
eral,-" and  may  require  the  sureties  to  justify.21  But 
the  sureties  on  the  bond  are  not  bound  to  justify 
until  a  rule  to  do  so  is  laid  upon  them.'-^  The  absence 
of  any  acknowledgment  or  proof  of  the  execution 
of  the  bond  is  a  matter  of  practice  for  the  State  court 
to  pass  upon.'-^3  Where  the  bond  presented  is  apparently 
ample,  the  State  court  cannot  arbitrarily  refuse  to 
receive  it,  or  refuse  to  remove  without  giving  an  oppor- 
tunity to  correct  it,  and  make  it  ample.24  It  cannot 
reject  the  security  without  assigning  a  cause;  '--5  nor  can  it 
refuse  to  accept  it,  except  on  the  ground  of  insufficiency."-^ 
If  all  the  requisites  exist,  the  State  court  must  accept  the 
surety  and  proceed  no  farther.^"  The  surety  is  not  bound 
by  the  subsequent  adjudication  against  the  principal  in 
the  State  court .-8  An  irregularity  or  defect  in  the  form 
of  the  bond  will  be  deemed  waived  after  the  expiration  of 
eighteen  months,  where  the  cause  was  removed  with  the 
consent  of  all  the  parties.-^  The  bond  is  sufficient  if  con- 
ditioned that  petitioners  will  comply  with  the  statute,  and 
although  the  obligors  are  not  called  sureties  ;  so  "but  it 
must  provide  for  the  appearance  of  petitioner  at  the  next 
term  of  the  court ;3i  and  that  the  surety  will  cause  copies 
of  the  record  to  be  entered  is  not  sufficient.^^  If  the  time 
prescribed  in  the  bond  within  which  the  transcrij^t  shall 
be  filed  has  elapsed,  the  bond  is  insufficient; 3-3  and  if  de- 
fendant is  held  to  bail,  the  amount  of  the  bond  must  equal 
the  bail.si  A  clause  in  the  condition  of  the  bond  provid- 
ing that  defendants  shall  cause  to  be  done  such  other  and 
appropriate  acts  as  are  required  is  sufficient  compliance 
with  the  requirements  of  the  statute.-3i> 

1    Koberts  v.  Carrington.  2  Hall,  649;  Hazard  v.  Durant,  9  R.  I.  602. 


§  11  d  PROCEEDINGS.  144 

2  Removal  Cases,  100  U.  S.  457;  Mix  v.  Andes  las.  Co.  74  N".  T.  53. 

3  Timstall  V.  Madisoa,  30  La.  An.  471 ;  Mix  v.  Andes  Ins.  Co.  74  N. 

y.  53. 

*  4    Brown  v.  Crippen,  4  Hen.  &  M.  173. 

5  Miller  v.  Finn,  1  Neb.  254. 

6  Blauchard  v.  Dwiglit,  12  "Wend.  192. 

7  Bvrdeck  r.  Hale,  7  Biss.  96;  8  Ch.  L.  N.  192.  See  Torrey  v. 
Grant  Works,  14  Blatchf.  2Gf). 

8  Kirkpatrick  v.  Hopkins.  2  Miles,  277;  Best  v.  N.  Y.  Life  Ins.  Co.  2 
Cin.  Rep.  ;i29;  Kobinson  v.  Potter,  43  N.  H.  188;  Hazard  v.  Durant,  9 
R.  I.  602 ;  Weed  Sew.  Mach.  Co.  v.  Smith,  71  111.  204.  Contra :  Campbell 
V.  Wallen,  1  Mart.  &  Y.  266. 

9  Kirkpatrick  f.  Hopkins,  2  Miles,  277. 

10  Beebe  v.  Cheeney,  11  The  Reporter,  360 

11  Campbell  v.  Wallen,  1  Mart.  &  Y.  266. 

12  Hill  V.  Henderson,  21  Miss.  688. 

13  Timstall  V.  Madison,  30  La.  An.  471. 

14  Brown  v.  Crippen,  4  Hen.  &  M.  173;  Stevens  v.  Richardson,  13  The 
Reporter,  678;  S.  C.  9  Fed.  Rep.  191. 

15  Dennis  v.  Alachua,  3  Woods,  683. 

16  Weed  Sew.  Mach.  Co.  v.  Smith,  71  111.  204. 

17  Weed  Sew.  Mach.  Co.  t- .  Smith,  71  111.  204. 

18  Orosco  V.  Gagliardo,  22  Cal.  83;  Suydam  v.  Smith,  I  Denio,  263. 

19  Fitz  V.  Haydeu,  4  Martin  N.  S.  653. 

20  Mix  V.  Andes  Ins.  Co.  74  N.  Y.  53. 

21  Weed  Sew.  Mach.  Co.  v.  Smith,  71  111.  204;  Darst  v.  Bates,  51  IlL 
439;  MUler  v.  Fina,  1  Neb.  254. 

22  Empire  Trans.  Co.  v.  Richards,  8S  111.  404. 

23  Cooke  v.  Seligman,  7  Fed.  Rep.  263. 

24  Taylor  v.  Shaw,  54  N.  Y.  75. 

25  Yulee  v.  Vose,  94  U.  S.  539;  Taylor  v.  Shaw,  54  N.  Y.  75;  Mix  v. 
Andes  Ins.  Co.  74  N.  Y.  53. 

26  Yulee  V.  Vose,  94  U.  S.  539;  S.  C.  64  N.  Y.  449;  Fisk  v.  Union  Pac. 
R.  Co.  6  Blatchf.  362;  Mis  v.  Andes  Ins.  Co.  74  N.  Y.  53. 

27  De  Camp  v.  N.  J.  M.  L.  Ins.  Co.  2  Sweeny,  481. 

28  State  v.  Tiedermann,  10  Fed.  Rep.  20. 

29  Hervey  v.  Hlinois  M.  R.  Co.  3  Fed.  Rep.  707. 

30  Stevens  v.  Richardson,  9  Fed.  Rep.  191. 

31  Miller  v.  Finn,  1  Neb.  254. 

32  Clippinger  v.  Missouri  Val.  Ins.  Co.  26  Ohio  St.  404. 

33  Clippinger  v.  Missouri  Val.  Ins.  Co.  26  Ohio  St.  404. 

34  Jones  v.  Seward,  17  Abb.  Pr.  377. 

35  Cooke  v.  Seligman.  7  Fed.  Rep.  263. 

§  11  d.  At  or  before  the  first  term.— Tlie  Act  of 
1875  requires  the  petition  to  be  made  and  filed  at  the  first 
term  at  which  the  cause  could  be  tried  on  its  merits,  and 
before  the  trial  thereof;!  even  if  the  cause  could  not  be 


145  PROCEEDI2fGS.  §   11  d 

readied  for  trial.2  The  first  term  at  which  the  case  can 
be  tried  is  the  term  at  which  there  is  an  issue  for  trial; 3 
and  after  the  expiration  of  such  term  an  application  is  too 
late.4  The  term,  "  at  which  a  cause  could  be  first  tried," 
means  when  the  issues  are  first  made  up;°  that  is,  the 
term  at  which  either  party  may  demand  a  trial.6  It  is  not 
necessary  that  it  should  be  at  the  first  term  that  it  could 
be  put  at  issue,  but  at  any  time  before  pleadings  are  com- 
pleted, or  at  the  first  term  following^  It  is  the  evident 
intention  of  the  Act  of  March  3rd,  1875,  §  3,  that  if,  under 
the  local  law  and  practice,  a  case  could  have  been  tried  at 
a  stated  term,  a  removal  cannot  be  had  after  the  lapse  of 
that  term.8  So  if  the  case  was  at  issue  and  could  have 
been  tried,  but  was  continued  over  the  term  by  consent 
of  parties,  it  is  then  too  late,^  unless  the  State  law  did 
not  require  it  to  be  tried  at  the  appearance  term.i*^  But 
the  entry  of  appearance  must  be  general  and  uncondi- 
tional,ii  at  or  before  the  term  at  which,  by  the  law  of  the 
State  and  rules  of  practice,  the  cause  should  first  regularly 
stand  for  trial;  i^  and  the  time  cannot  be  extended  by  the 
circuit  court,  where,  in  point  of  fact,  the  issues  are  not 
made  up  at  the  first  term.is  The  Code  of  Iowa,  which 
provides  that  law  actions  "  shall  be  tried  at  the  first  term 
after  legal  and  timely  service  has  been  made,"  limits  the 
time  for  application  for  removal  of  law  actions  ;14  while 
equity  suits  may  be  removed  to  the  circuit  court  at  the 
second  term,  at  least  where  there  is  no  rule  of  court  re- 
quiring such  suits  to  be  tried  at  the  appearance  term.i^ 
In  an  equity  cause  the  limitation  is  to  the  first  term  at 
which  the  cause  can,  on  due  notice,  be  regularly  set  down 
for  hearing,  and  before  its  hearing;  i6  and  under  the  Code 
this  includes  foreclosures  of  mortgages. i"  A  chancery  case 
cannot  be  tried  till  the  issues  are  made  up,  and  if  there  is 
no  delay  on  the  part  of  the  applicant,  the  application  is  in 
time  if  made  before  the  lapse  of  the  term  at  which  it 
could  have  been  tried.is  It  is  not  necessarily  the  first 
term  of  the  court  wherein  the  action  is  entered,  but  the 
Desty  removal.— 13. 


§  11  d  PROCEEDINGS.  140 

term  when,  after  pleadings  are  made  up,  it  could  be  first 
tried  under  the  rules  of  practice. i9  The  application  is 
seasonable  if  made  at  the  trial  term  next  after  the  term  at 
Avhich  the  cause  is  at  issue  if  it  be  the  term  at  which  it 
could  first  be  tried.20  Where  terms  of  court  were  held 
every  month,  and  a  rule  of  court  provided  that  at  any 
time  within  ten  days  of  the  commencement  of  a  term  the 
case  might  be  placed  on  the  calendar,  an  application  made 
the  second  month  after  the  case  was  placed  on  the  calen- 
dar is  too  late. 21  If  the  term  at  which  the  cause  could  be 
first  tried  is  one  which  occurs  during  the  time  a  trial  is 
stayed  by  order  of  the  court,  it  is  not  such  a  term  as  is 
meant  by  the  statute.-  A  party  who  proceeds  to  trial 
without  applying  for  a  transfer  cannot  remove  at  a  subse- 
quent term,  although  a  new  trial  may  have  been  granted. 
It  is  otherwise  under  the  Acts  of  1866,  1867.23  It  must 
affirmatively  appear  on  the  record,  or  by  facto  in  the 
petition,  that  the  case  could  not  have  been  heard  and 
tried  at  a  term  before  the  application  was  made.24 

1  American  Bible  Society  v.  Grove,  101 U.  S.  610;  Ames  v.  Colorado 
Cent.  K.  Co.  4  Dill.  260;  McLean  v.  Chicago  Sc  St.  P.  R.  Co.  16  BlatcM. 
319;  Fulton  V.  Golden,  20  Alb.  Law  J.  229;  Murray  v.  Holden,  2  Fed. 
Hep.  740;  Huddy  v.  Havens,  5  Cent.  L.  J.  66;  Taylerv.  Rockefeller,  7 
Cent.  Law  J.  349;  Danville  Banking  &  T.  Co.  v.  Parks,  88  111.  170; 
Kuowlton  V.  Congress  &  E.  Spring  Co.  13  BlatcM.  170;  N.  Y.  W.  &  S. 
Co.  V.  Loomis,  122  Mass.  431;  Inhab.  of  School  Dist.  v.  ^tna  Ins.  Co. 
66  Me.  370. 

2  Barber  v.  St.  Louis  etc.  R.  R.  Co.  43  Iowa,  223. 

3  Meyer  v.  Construction  Co.  100  U.  S.  474;  Scott  v.  Clinton  &  S.  R. 
Co.  6  Biss.  529;  Gurnee  v.  Brunswick,  1  Hughes,  270;Grpene  v.  Klingler, 
10  Cent.  L.J.  47;  Whitehouse  v.  Continental  Ins.  Co.  37  Leg.  Int.  225; 
Phoenix  Life  Ins.  Co.  v.  Saettel,  33  Ohio  St.  278. 

4  Traders'  Bank  v.  Tallmadge,  9  Fed.  Rep.  363. 

5  Scott  t;.  Clinton  &  S.  R.  Co.  6  Biss.  529;  Murray  v.  Holden,  2  Fed. 
Rep.  740. 

6  Babbitt  v.  Clark,  2  Morr.  Trans.  606. 

7  "Vyhitehouse  v.  Contin.  F.  Ins.  Co.  2  Fed.  Rep.  598. 

8  Gurnee  v.  Brunswick,  1  Hughes,  270;  Danville  Banking  &  T.  Co. 
V.  Parks,  8S  111.  170;  Carswell  v.  Schley,  59  Ga.  17;  Cole  v.  La  Cliambre, 
31  La.  An.  41 ;  New  York  W.  &  S.  Co.  v.  Loomis,  122  Mass.  431 ;  Inhab. 
of  School  Dist.  V.  MXm^  Ins.  Co.  66  Me.  370;  Watt  v.  White,  46  Tex.  338; 
Aldrich  v.  Crouch,  10  Fed.  Rep.  305. 

9  Scott  V.  Clinton  &  S.  R.  Co.  6  Biss.  529;  Stough  v.  Hatch,  16 
Blatchf.  233. 

10    Palmer  v.  Call,  4  Dill.  566. 


147  PROCEEDINGS.  §  11  6 

11  McCuUough  V.  Sterling  S.  F.  Co.  4  DiU.  563. 

12  Phoenix  Life  Ins.  Co.  r.  Saettel,  33  Ohio  St.  278. 

13  Atlee  v.  Potter,  4  Dill.  559. 

14  Atlee  v.  Potter,  4  Dill.  559;  McCuUough  v.  Sterling  School  F.  Co. 
4  Dill.  563. 

15  Pahner  v.  Call,  4  Dill.  .566. 

16  Warner  v.  Sisson,  23  N.  J.  Eq.  117. 

17  Palmer  v.  CaU,  4  Dili.  566. 

18  Scott  V.  Clinton  &  S.  R.  Co.  6  Biss.  529.  See  Michigan  0.  K.  H. 
Co.  V.  Andes  Ins.  Co.  9  Ch.  L.  N.  34. 

19  Meyer  v.  Norton,  9  Fed.  Eep.  433;  Wheeler  v.  Liverpool  L.  Ins. 
Co.  13  The  Reporter,  563. 

20  Wheeler  v.  Liverpool  L.  Ins.  Co.  13  The  Reporter,  418. 

21  Kerting  v.  Am.  Oleographic  Co.  10  Fed.  Rep.  U .  S.  17. 

22  Warren  v.  Pa.  K.  Ft.  Co.  13  Blatchf.  231.  See  Bright  r.  Milwaukee 
etc.  R.  R.  Co.  1  Abb.  N.  C.  14;  Farrest  v.  Edwin  Farrest  House,  1  Fed. 
Rep.  4S9. 

23  Young  V.  Andes  Ins.  Co.  3  Cent.  L.  J.  719. 

24  Aldrich  v.  Crouch,  10  Fed.  Rep.  305. 

§  11  e.  "When  cause  could  be  first  tried.— To  au- 
thorize a  removal  the  action  must,  at  the  tiuie  of  the 
application,  be  actually  pending  for  trial.i  The  act  omits 
the  words  "final  hearing,"  and  uses  simply  the  word 
'•trial,"^  meaning  that  hearing  which  involves  the  facts 
of  the  case,  and  their  investigation  by  the  court  alone,  or 
by  the  court  and  jury.  The  petition  must  be  filed  before 
snch  trial  commences; 3  but  it  cannot  be  said  to  have 
commenced  when  only  preparations  have  been  made  for 
it.''  A  cause  may  be  removed  before  an  answer  is  made 
wJiere  bailees  have  moved  for  a  substitution  of  the  real 
parties  in  interest,  and  the  order  of  substitution  has  been 
entered."  A  case  is  in  a  condition  to  be  tried  when  it  is 
a1  i<sue,  but  it  is  not  at  issue,  where  the  answer  requires 
a  reply  to  be  filed,  until  such  reply  is  filed.^  A  case  not 
at  issue  as  to  one  defendant  may  be  removed  as  to  him, 
although  it  has  long  been  at  issue  as  to  the  other  parties."^ 
So  an  intervener  may  remove  at  the  time  of  his  interven- 
tion; s  as  where  he  has  just  been  served  with  process. ^ 
The  construction  of  the  statute  is  that  if  the  case  is  in  a 
condition  where  it  can  be  tried  in  conformity  with  the  law 
and  the  practice  of  the  court,  then  an  application  after 


§  11  d  PROCEEDrs'GS.  148 

that  term  in  which  it  is  in  that  condition  comes  too  late.^*' 
Where  a  State  statute  does  not  fix  the  time  within  which 
pleadings  should  be  filed,  the  case  is  not  triable  till  issue 
is  joined,  in  i^ursuance  of  an  order  of  the  court. i^-  The  ap- 
plication must  not  only  be  made  before  the  trial  begins 
and  before  the  jury  is  called,!"^  but  at  the  time  when  the 
cause  is  ready  for  trial,  although  the  court  and  parties 
may  not  be  ready  to  try  it.i^  When  a  cause  is  noticed  for 
trial  and  is  on  the  calendar,  it  is  too  late.i*  The  mere 
fact,  however,  that  a  cause  is  ready  at  a  term  of  court  for 
the  ex  parte  execution  of  a  writ  of  inquiry  by  plaintiff 
after  an  ofiice  judgment  is  not  equivalent  to  being  ready 
for  trial  on  issues  joined.  ^-^  Defendants,  not  being  obliged 
to  re-docket  the  case,  need  not  take  afiirmative  action  for 
a  removal  until  the  plaintiffs  cause  the  case  to  be  re- 
docketed,  of  which  they  are  entitled  to  notice.i^  The 
right  of  removal  does  not  exist  after  a  stipulation  filed 
admitting  the  claim  sued  on;  1"  nor  when  the  plaintiff  is 
guilty  of  laches. 18  A  State  court  is  under  no  obligation 
to  delay  a  trial  to  enable  the  party  to  prepare  a  petition ;  i* 
and  where  a  cause  could  have  been  noticed  for  trial,  and 
the  petition  for  removal  was  not  filed  till  after  the  term> 
it  was  held  too  late.-*'  Removal  cannot  be  obtained  after 
the  cause  has  been  twice  fixed  for  trial  at  two  different 
sessions  of  the  court. -i  A  petition  filed  before  trial,  and 
at  a  term  subsequent  to  entry  and  issue,  is  too  late, 
although  the  case  has  been  first  put  on  the  trial  list  at  the 
term  in  which  the  petition  is  filed.22  A  cause  cannot  be 
removed  after  a  default  entered,  and  before  the  default 
has  been  set  aside,  even  though  the  service  was  by  publi- 
cation, and  default  not  made  absolute.23  An  application 
filed  after  a  cause  is  called  and  plaintiff  has  announced 
himself  ready,  and  time  is  granted  defendants  to  apply 
for  a  continuance,  is  too  late;-^  since  the  petition  cannot 
be  filed  after  the  trial  has  commenced; -5  or  even  after  the 
pleadings  have  been  read  and  the  evidence  submitted,  and 
before  the  argument  has  begun. 26     There   has  been  a 


149  PROCEEDINGS.  §   11  6 

"trial"  if  a  judgment  has  "been  rendered  sustaining  a 
demurrer  to  an  answer. ^^  If  a  case  be  referred  to  a  mas- 
ter in  clianeery,  it  cannot  be  removed;  2s  nor  should  a 
petition  be  granted  where  a  suit  was  tried,  and  the  jury- 
disagreed,  and  the  case  was  continued.29  On  reversal  of 
a  decree  on  a  suit  for  an  accounting,  ordering  an  account 
to  be  taken  but  not  giving  a  second  hearing,  the  cause 
cannot  be  removed.^o  A  removal  as  to  garnishee  pro- 
ceeding instituted  concurrently  with  the  action  is  too 
late  after  judgment  on  the  main  action.^i  if  the  appellate 
tribunal  enters  a  judgment  instead  of  remanding  the  case, 
the  case  cannot  be  removed. s^  But  if  a  party  is  forced  to 
trial  by  a  refusal  to  order  a  removal,  he  may  remain  till 
after  reversal,  and  then  remove. ^s  So  a  case  is  not  re- 
movable after  a  writ  of  scire  facias  has  issued.34  The 
application  made  within  the  time  specified  by  the  statute 
for  appearance  on  a  motion  to  reopen  a  decree  is  in  time.ss 

1  Vannevar  r.  Bryant,  21  Wall.  43;  S.  C.  106  Mass.  ISO. 

2  McCallon  t;.  Waterman,  1  Flippen,  652. 

3  Lewis  V.  Smytlie,  2  Woods,  117. 

4  Removal  Cases,  100  U.  S.  457;  Yulee  v.  Vose,  99  U.  S.  539;  S.  C.  64 
N.  Y.449. 

5  Hodson  I'.  Lake  Shore  etc.  R.  M.  Co.  13  The  Reporter,  41. 

6  Mich.  Cent.  R.  Co.  v.  Andes  Ins.  Co.  9  Ch.  L.  N.  34. 

7  Stapleton  v.  Reynolds,  9  Ch.  L.  N.  33. 

8  Burdick  v.  Peterson,  11  The  Reporter,  829. 

9  Greene  t'.Klingler,  10  Cent.  L.  J.  47.10  Fed.  Rep.  689. 

10  Aldrich  v.  Crouch,  10  Fed.  Rep.  10. 

11  Van  Allen  v.  Atchison  C.  &  P.  R.  R.  Co.  3  Fed.  Rep.  545. 

12  St.  Anthony's  F.  W.  P.  v.  King  &  Bridge  Co.  23  Minn.  186. 

13  Gurneev.  Brunswick  Co.  1  Hughes,  270;  Blackwell  v.  Brown,  1 
Fed.  Rep.  351;  Chicago,  B.  &  Q.  R.  Co.  v.  Welch,  44  Iowa,  665;  White- 
house  V.  Ins.  Co.  2  Fed.  Rep.  493. 

14  Stough  V.  Hatch,  8  The  Reporter,  7. 

15  Hunter  v.  Royal  Canadian  Ins.  Co.  3  Hughes,  234. 

16  Pettilon  v.  Noble,  7  Biss.  449. 

17  Kerth  v.  Levi,  2  Fed.  Rep.  743. 

18  Broadnax  v.  Eisner,  13  Blatchf.  366. 

19  U.  S.  Savings  Inst.  v.  Brockschmidt,  72  lU.  370. 

20  Traders'  Bank  v.  Tallinadge,  13  The  Reporter,  714. 

21  Cole  V.  La  Chambre,  31  La.  An.  41. 

22  N.  Y.  W.  &  S.  Co.  V.  Loomis,  122  Mass.  431. 


§  11  f  PROCEEDINGS.  150 

23  McCallou  v.  Waterman,  4  Cent.  L.  J. 413;  S.  C.  1  Flippen,651.  See 
Bright  f.  Milwaukee  R.  E.  Co.  1  Abb.  N.  C.  14;  criticised  in  4  Cent. 
L.  J.  492. 

24  Watt  V.  White,  46  Tex.  338. 

25  Del.  Riv.  Const.  Co.  v.  Davenport  &  St.  P.  K.  R.  Co.  46  Iowa,  406. 

26  Lewis  v.  Smythe,  2  Woods,  177. 

27  Meyer  v.  Norton,  9  Fed.  Rep.  433 

28  Jifkins  v.  Sweetser,  13  Ch.  L.  N.  103. 

29  Amer.  Bible  Soc.  v.  Grove,  101     U.S.  610. 

30  Jifkins  v.  Sweetser,  11  The  Reporter,  625, 

31  Pratt?;.  Albright,  9  Fed.  Eep.  634. 

32  Jifkins  v.  Sweetser,  13  Ch.  L.  N.  103. 

33  Railroad  Co.  v.  Koontz,  3  Morr.  Trans.  34. 

34  Mooney  v.  Agnew,  4  Fed.  Eep.  7. 

35  Harter  Town  v.  Kernochan,  2  Morr.  Trans.  235. 

§  11  f.  Time  under  prior  statutes.— Under  the 
twelfth  section  of  the  Judiciary  Act  defendant  was  com- 
pelled to  file  his  petition  at  the  time  of  entering  his  appear- 
ance; and  by  the  Act  of  18G6  the  time  was  enlarged,  and 
he  was  allowed  to  file  at  any  time  before  the  trial  or  final 
hearing;  and  by  the  Act  of  1867  the  words  "trial  or  final 
hearing"  were  changed  to  "final  hearing  or  trial";  and 
the  Act  of  1875  omits  the  words  "  final  hearing,"  and  uses 
simply  the  word  "  trial."  Under  the  Act  of  1867  the  word 
"  trial"  referred  to  cases  at  law,  and  "hearing"  to  suits  in 
equity.i  "Trial"  and  "final  hearing"  are  distinct  terms; 
"trial"  applies  to  common-law  cases,  and  "hearing"  to 
suits  in  equity.2  By  "trial  or  final  hearing"  is  meant  a 
trial  or  hearing  on  the  merits;  ^  an  examination  of  the 
facts  in  issue.  ^  Under  the  Act  of  1866  the  right  is  not  lim- 
ited to  the  time  when  suit  was  commenced  ;5  and  where 
none  of  the  defendants  are  citizens  of  the  State  where 
sued,  and  are  served  at  different  times,  or  at  different 
times  enter  an  appearance,  they  may  at  different  times 
respectively  make  application. <>  So  where  a  landlord  in- 
tervenes, his  application  is  in  time  if  made  on  the  day 
after  he  becomes  defendant,  providing  the  cause  had  not 
been  previously  at  issue. "ii  If  before  the  pleadings  are 
completed,  it  is  in  time.s  The  petition  may  be  made  at 
anytime  before  the  trial  or  hearing; ^  and  before  final 


151  PROCEEDINGS.  §   11  f 

hearing  or  trial  means  before  final  judgment  in  the  court 
of  original  jurisdiction.  1°  An  application  under  tlie  Acts 
of  1866  and  1867  must  be  made  before  trial  or  hearing,  not- 
withstanding an  amendment  of  the  declaration  on  which 
issue  was  not  joined  at  the  time  the  petition  was  filed. ^i 
The  action  must  be  actually  pending  for  trial;  12  and 
though  it  need  not  be  removed  at  the  appearance  term,  it 
must  be  at  the  term  when  it  stands  for  trial. i3  It  cannot 
be  removed  after  the  jury  is  sworn;  i^  uor  after  argument 
and  submission  of  the  case.i^  If  after  hearing  the  case 
has  been  referred  to  a  master  it  cannot  be  removed. ^s  a 
petition  for  removal  cannot  be  filed  after  a  motion  for  new 
trial  has  been  overruled;  i"  but  submission  to  a  jury  under 
the  act  is  not  a  "  final  hearing,"  When  there  has  been  a 
partial  disagreement  as  to  the  verdict,i8  and  if  the  jury 
disagree,  the  case  may  be  remoA'ed;!^  and  if  a  new  trial 
has  been  granted  the  cause  may  be  removed; 20  but  other- 
wise if  it  has  not  been  granted. 21  If  the  court  has  wholly 
set  aside  the  verdict  and  granted  a  new  trial,  or  if  the 
supreme  court  has  remanded  the  cause  and  granted  a 
trial  de  novo,  it  is  in  the  same  position  as  before  the  first 
trial  or  ]iearing;22  |)ut  a  right  to  the  second  trial  must  be 
perfected  before  a  demand  for  the  transfer  can  be  made. -3 
A  removal  is  authorized  before  final  judgment,  but  not 
after  appeal  from  such  judgment;  -^  nor  can  the  motion  be 
made  in  the  appellate  court  pending  appeal;  '-5  but  it  may 
be  removed  if  only  a  preliminary  question  is  decided.^s 
Where  the  decree  of  the  court  below  was  reversed,  the 
cause  remanded  with  directions  to  dismiss  the  suit,  the 
I^arty  has  no  remedy; 2"  but  where  a  new  trial  is  ordered, 
a  removal  may  be  had,^^  and  there  is  no  need  of  new 
pleadings  if  the  case  is  in  a  ijroper  shajie  for  trial  ;29  but 
after  the  second  term  it  is  too  late.*^  So  iilaintiff  would 
have  the  right  to  dismiss  his  suit  and  commence  in  the 
Federal  court.^i  Although  defendant  is  entitled  to  a  new 
trial,  yet  if  the  judgment  remains  in  force  he  cannot  re- 
move; 32  and  so  if  the  appellate  court  enters  judgment 
instead  of  remanding  the  cause. 3^ 


§  11  f  PROCEEDINGS.  152 

1  McCallon  v.  Waterman,  1  Flippeii,  652. 

2  Insurance  Co.  r.  Dunn,  19  Wall.  214;  Crane  v.  Eeeder,  28  Mich. 
527;  Miller  r.  Finn,  1  Neb.  254;  Akerly  v.  Vilas,  24  Wis.  165. 

3  Insurance  Co.  v.  Dunn,  19  Wall.  214. 

4  Vannevar  v.  Bryant,  21  Wall.  41 ;  S.  C.  106  Mass.  180. 

5  Johnson  v.  Monell,  1  Woolw.  .390:  and  see  Insurance  Co.  v.  Pech- 
ner,  95  U.  S.  183. 

6  Shelby  r.  Hoffman.  7  Ohio  St.  453;  Ward  v.  Arredondo,  1  Paine, 
370;  Fisk  v.  Union  Pac.  K.  Pt.  Co.  8  Blatchf.  248. 

7  Greene  v.  Klinger,  10  Cent.  L.  J.  47,  11  Fed.  Rep. 

8  Whitehouse  v.  Continental  Ins.  Co.  37  Leg.  Int.  225. 

9  Vannevar  v.  Brvant,  21  Wall.  43;  .*<.  C.  106  Mass.  180;  Cox  v.  East 
Tenn.  V.  &  G.  R.  R.  Co.  62  Ga.  163;  Ely  v.  North.  P.  R.  R.  Co.  7  Week. 
Notes,  145;  S.  C.  36  Leg.  Int.  164. 

10  Yulee  v.  Vose,  99  U.  S.  539;  Brice  v.  Soraers,  1  Flippen,  574. 

11  Adams  Express  Co.  v.  Trego,  35  Md.  47.  See  Lewis  v.  Smythe,  2 
Woods,  117. 

12  Vannevar  v.  Bryant,  21  Wall.  41. 

13  Cox  V.  East  Tenn.  V.  &  G.  R.  B.  Co.  62  Ga.  163. 

14  Adams  Express  Co.  v.  Trego,  35  Md.  47. 

15  Waggener  v.  Cheek,  2  Dill.  560. 

16  Jifkins  v.  Sweetser,  13  Ch.  L.  N.  103. 

17  Fasnacht  v.  Frank,  23  Wall.  416. 

18  Osborn  v.  Osborn,  5  Fed.  Rep.  389. 

19  Hall  r.  Ricketts,  9  Bush,  366;  Burson  v.  Nat.  ParK  Bank,  10  Ind* 
173;  Clarke  v.  Dekiware  «fc  H.  Can.  Co.  11  R.  I.  36.  Contra:  Galpin  v 
Critchlow,  112  Mass.  339;  Chandler  v.  Coe,56  N.  H.  184;  Continental 
Ins.  Co.  V.  Kasey,  27  Gratt.  216. 

20  Minnett  v.  M.  &  St.  P.  R.  R.  Co.  3  Dill.  460;  Kellogg  v.  Hughes,  3 
Dill.  357.  Contra:  Akerly  v.  Vilas,  24  Wis.  165;  Chandler  v.  Coe,  56  N. 
H.  184;  Continental  Ins.  Co.  v.  Kasey,  27  Gratt.  216;  Hall  v.  Ricketts,  9 
Bush,  366. 

21  Vannevar  v.  Bryant,  21  Wall.  41 ;  Bryant  v.  Rich,  106  Mass.  180. 

22  Stevenson  v.  Wilson.  19  Wall.  572;  Vannevar  v.  Brvant,  21  Wall. 
41 ;  Waggener  v.  Cheek,  2  Dill.  560;  Kellogg  v.  Hughes,  3  Dill.  357;  Min- 
nett V.  Milwaukee  <t  St.  P.  R.  R.  Co.  3  Dill.  460;  denving  Galpin  v.  Critch- 
low, 112  Mass.  339.  See  also  Sims  v.  Sims,  17;  Blatchf.  369;  Dart  v. 
McKinney,  9  Blatchf.  359;  Johnson  i'.  Monell,  1  Woolw.  390;  Barber  v. 
St.  Louis  etc.  R.  R.  Co.  43  Iowa,  323 ;  Rathboue  v.  Oil  Tract  Co.  v.  Rauch, 
5  W.  Va.  79. 

23  Vannevar  v.  Bryant,  21  Wall.  41. 

24  Stevenson  v.  Williams.  19  Wall.  572;  Vannevar  v.  Bryant,  21  Wall. 
41 ;  Waggener  v.  Cheek,  2 Dill.  560;  Kellogg  v.  Hughes,  3  Dill.  357;  Dart 
V.  McKinney,  9  Blatchf.  35J;  Brice  v.  Soiners,  I  Flippen,  .574. 

25  Beery  v.  Irick,  22  Gratt.  4S7;  Williams  v.  Williams,  24  La.  An.  55 ; 
Stevenson  v.  Williams,  19  Wall.  572;  Waggener  v.  Cheek,  2  Dill.  .560; 
Miller  t;.  Finn,  I  Neb.  254;  McKinley  v.  Chicago  &  N.  W.  R.  K.  Co.  14 
Iowa,  314;  but  see  Douglas  v.  Caldwell, 65  N.  C.  248.  Contra:  Sneed  v. 
Brownlow,  4  Cold.  253. 

26  Douglas  f.  Caldwell,  65  N.  C.  248. 

27  Boggs  V.  Willard,  3  Biss.  256;  S.  C.  70  111.  315. 

28  Hoadley  v.  San  Francisco,  3  SawJ^  553;  Dart  v.  McKinney,  9 


153  PKOCEEDINGS.  §  H  g 

Blatchf.  359;  Knowlton  v.  Congress  &  Empire  S.  Co.  13  Blatclif.  170; 
Dart  V.  Walker,  43  How.  Pr.  2y.  Contra:  Craue  v.  Reader,  28  Mich. 
527. 

29  Dartv.  McKinney,  9  Blatclif.  359. 

30  Gibson  v.  Johnson,  1  Peters  C.  C.  44. 

31  Hazard  v.  Chicago,  B.  &  P.  R.  R.  Co.  4  Biss,  453. 

32  Whittier  v.  Hartford  P.  Ins.  Co.  55  N.  H.  141. 

33  Jiffliins  v.  Sweetser,  13  Ch.  L.  X.  103 

§  11  g.  Jurisdiction  of  circuit  court.— The  juris- 
diction of  the  circuit  court  attaches  as  soon  as  it  becomes 
the  duty  of  the  State  court  to  proceed  no  farther. i  "Where 
a  sufficient  case  is  made  the  jurisdiction  of  the  State  court 
is  at  an  end,  and  tlie  jurisdiction  of  the  Federal  court  at- 
taches.2  When  a  case  is  clearly  within  the  statute,  and 
the  controversy  one  in  relation  to  the  jpriority  of  liens  be- 
tween citizens  of  different  States,  the  circuit  court  has 
jurisdiction.3  The  jurisdiction  depends  on  the  act  under 
which  the  suit  is  removed;  so  restrictions  on  the  jurisdic- 
tion in  the  eleventh  section  of  the  Judiciary  Act  have 
no  application  to  removals  under  the  twelfth  section.*  If 
the  statute  authorizes  a  removal,  it  empowers  the  circuit 
court  to  take  jurisdiction ;  5  but  it  is  not  required  to  take 
jurisdiction  until  in  some  form  the  jurisdiction  is  made  to 
appear  of  record;  6  so  there  is  no  jurisdiction  where  no 
question  is  pending.'  Removal  is  an  indirect  mode  by 
which  the  circuit  court  acquires  original  jurisdiction. ^ 
Where  the  defendant  has  filed  the  proper  application  and 
bond,  the  jurisdiction  of  the  circuit  court  will  not  be 
affected  by  his  subsequent  death,  and  the  execution  of  an 
appeal  bond  by  his  executor. 9  The  question  of  jurisdic- 
tion belongs  to  the  Federal  court,  and  must  be  determined 
there;  10  so  inquiry  into  the  facts  of  the  petition  cannot  be 
made  in  the  State  court;  it  is  a  question  exclusively  for  the 
Federal  court.n  Where  a  suit  is  legally  removed  the  jur- 
isdiction of  the  State  court  ceases,  the  case  is  at  an  end;i^ 
and  it  cannot  be  remanded  foi  any  i)urpose ;  i^  and  the 
question  of  jurisdiction  is  not  waived  where  a  State  court 
asserts  jurisdiction    after    a  proper  application    for   re- 


§  11  g  PROCEEDINGS.  154 

moval.i^  If  the  case  be  within  the  act  of  Congress,  and  the 
petition  in  due  form,  accompanied  by  the  required  surety, 
the  jurisdiction  of  the  State  court  in  the  case  ceases  eo  in- 
stanti ;  i^  and  all  its  proceedings,  after  an  erroneous  de- 
nial of  the  petition  for  removal,  are  coram  non  judice.^^ 
The  requirements  of  the  act  cannot  be  varied  or  added  to 
by  the  laws  of  the  State,  or  the  practice  of  the  State  court,!'^ 
and  it  is  not  a  valid  objection  to  the  removal  that  process 
was  not  served  in  conformity  to  the  laws  of  the  United 
States. 18  AYhere  defendant  is  served  with  process,  and 
has  answered,  the  court  has  personal  jurisdiction  over 
him,  and  a  second  service  of  process  is  not  necessary.19 
That  proof  of  publication  of  notice  to  defendant  was 
not  made  prior  to  the  order  for  removal  will  not  prevent 
the  Federal  court  from  having  jurisdiction; -^  a^d  -where 
defendant  voluntarily  appears  and  answers,  the  court  ac- 
quires jurisdiction,  irresjpective  of  the  want  of  a  replica- 
tion.2i  The  tiling  of  the  petition  is  not  a  waiver  of  the 
right  to  insist  that  service  of  process  was  procured  by 
fraud.2-  Where  the  petition  was  reserved  for  the  deci- 
sion of  the  supreme  court,  and  the  latter  dismissed  the 
petition  and  remanded  the  cause,  the  circuit  court  had  no 
jurisdiction.--^ 

1    Railroad  Co.  v.  Kooutz,  3  Morr.  Trans.  34. 

-,-.2    Clark  v.  Chicago,  M.  &  St.  P.  K.  Co.  11  Fed.  Rep,  355;  Sweet  r. 
Same,  11  Fed.  llep.  355. 

3  Beery  v.  Irick,  22  Gratt.  484. 

4  Lexington  r.  Butler,  14  Wall.  282;  Green  v.  Custard,  23  How.  484; 
Winaus  v.  McKean  etc.  Nav.  Co.  G  Blatchf.  215;  Buslinell  v.  Kennedy, 9 
Wall.  387;  Sands  r.  Smith,  1  Dill.  277;  Sayles  v.  N.  W.  Ins.  Co.  2  Curt. 
212;  Barclay  v.  Levee  Comm'rs,  1  Woods,  254;  Gaines  v.  Fuentes, 92 
U.  S.  10. 

5  Bushnelli'.  Kennedy,  9  Wall.  3S7;  Lexington  r.  Butler,  14  Wall. 
282;  Gaines  v.  Fuentes,  92  U.  S.  10;  Sands  v.  Smith,  1  Abb.  U.  S.  368;  S. 
C.  1  Dill.  290;  Bliven  v.  N.  E.  Screw  Co.  3  Blatchf.  HI ;  Barney  v.  Globe 
Bk.  5  Blatchf.  107;  Wiuaus  v.  McKean  R.  &  N.  Co.  li  Blatchf.  215;  Sayles 
V.  Northwestern  Ins.  Co.  2  Curt.  212;  but  see  Beardsley  v.  Torrey, 
4  Wash.  C.  C.  286;  Colcord  v.  Wall,  2  Miles,  459;  Denniston  v.  Potts,  19 
Miss.  3b;  Hadley  v.  Duulap,  10  Ohio  St.  1;  Hazard  v.  Durant,  9  R.  I. 
e02. 

6  American  Bible  Soci.  v.  Grove,  101  U.  S.  610. 

7  Fasnaclit  r.  Frank,  23  Wall.  41G. 

8  Karns  v.  Atlantic  &  Ohio  R.  R.  Co.  10  Fed.  Rep.  309;  Bushnell  r. 


155  PROCEEDINGS.  §   11  h 

Kennedy,  9  "Wall.  387;  Railroad  Co.  v.  "Wliitton,  13  Wall.  270.  See 
Ex  parte  Crane,  5  Peters ,  206. 

9    Garrett  v.  Bonner,  30  La.  An.  1305. 

10   Dennistoun  v.  Draper,  5  Blatchf.  338;  Taylor  v.  Rockefeller,  7 
Cent.  L.  J.  349;  Cobb  v.  Globe  Mut.  L.  Ins.  Co.  3  Hughes,  452. 
-  11    Fiskr.  Union  Pacif.  R.  R.  Co.  8  Blatclif.  243;  Stewart  v.  Morde- 
cai,  40  Ga.  1 ;  Cbamberlain  v.  Amer.  L.  Ins.  Co.  18  N.  Y.  Supr.  370. 

12  Clark  V.  Chicago,  M.&  St.  P.  R.  Co.  11  Fed.  Rep.  355;  Sweet ». 
Same,  11  Fed.  Rep.  355. 

13  Kanouse  v.  Martin,  15  How.  198;  Insurance  Co.  v.  Dunn,  19  Wall. 
214;  Mahone  v.  Manchester  etc.  R.  Co.  Ill  Mass.  72. 

14  Gordon  v.  Longest,  16  Peters,  98;  Kanouse  v.  Martin,  15  How.  198; 
Insurance  Co.  v.  Dunn,  19  Wall.  214;  New  Orleans  &  R.  Co.  v.  Missis- 
sippi, U.S.  ;  Removal  Cases,  100  U.  S.  475;  Goodrich  r.  Hunton, 
29  La.  An.  372;  Stevens  v.  Pncenix  Ins.  Co.  41  N.  Y.  149;  Hadley  v.  Dun- 
lap,  10  Ohio  St.  1;  Erie  R.  R.  Co.  v.  Stringer,  32  Ohio  St.  468;  Stanley  v. 
Chicago,  11. 1,  &  P.  R.  R.  Co.  3  Cent.  L.  J.  430. 

-  15  Removal  Cases,  100  U.  S.  457;  Fisk  v.  Union  Pac.  R.  R.  Co.  6 
Blatchf.  362;  Hatch  v.  Chicago,  R.  I.  &  P.  R.  R.  Co.  6  Blatchf.  105;  Mat- 
thews Z7.  Lyall,  6  McLean,  13;  Taylor  r.  Rockefeller,  7  Cent.  L.  J.  298; 
Fulton  V.  Gordon,  20  Alb.  L.  J.  229;  Ficklin  v.  Tarver,59  Ga.263;  Beery 
V.  Chicago  etc.  R.  R.  Co.  64  Mo.  533 ;  Blair  v.  West  Point  Manufacturing 
Co.  7  Neb.  146;  St.  Anthony's  Falls  AV.  P.  Co.  v.  King  Bridge  Co.  23  Minn. 
186;  Shaft  v.  Phoenix  Life  Ins.  Co.  67  N.  Y.  544;  Durham  v.  Southern  L. 
Ins.  Co.  46  Tex.  182;  McMurdy  v.  Insurance  Co.  4  Week.  No.  Cas.  18. 

16  Herryford  v.  JEtna  Ins.  Co.  42  Mo.  153;  Akerly  v.  Vilas,  2  Biss.  110; 
Fisk  V.  Union  Pac.  R.  R.  Co.  fi  Blatchf.  362;  8  Blatchf.  249;  Stevens  v. 
Ph(EnixIns.  Co.  41  N.  Y.  149.  See  Kanouse  v.  Martin,  15  How.  198; 
Gordon  v.  Longest,  16  Peters,  97;  Insurance  Co.  v.  Dunn,  19  Wall.  214; 
French  v.  Hay,  22  Wall.  250;  Removal  Cases,  100  U.  S.  457;  Du  Vivierv. 
Hopkins,  116  Mass.  126;  BeU  v.  Dix,  49  N.  Y.  2«^2;  Amory  v.  Amory, 
36  N.  Y.  Sup.  524;  Hadley  v.  Dunlap,  10  Ohio  St.  8;  Stanley  v.  Chi- 
cago, R.  I.  &  P.  R.  R.  Co.  3  Cent.  L.  J.  430;  Rosenfield  v.  Adams  Express 
Co.  21  La.  An.  233. 

17  Shaft  V.  Phoenix  M.  L.  Ins.  Co.  67  N.  Y.  544. 

18  Sayles  v.  Northwestern  Ins.  Co.  2  Curt.  212. 

19  Ward  V.  Todd,  2  Morr.  Trans.  1. 

20  Turner  v.  The  I.  B.  &  W.  R.  R.  Co.  8  Biss.  280. 

21  Turner  v.  The  I.  B.  &  W.  R.  R.  Co.  8  Biss.  280. 

22  Moynahan  v.  Wilson,  6  Cent.  L.  J.  28. 

23  Kimball  v.  Evans,  93  U.  S.  320.  See  Fasnacht  v.  Frank, 23  Wall. 
416. 

§  11  h.  Proceedings  in  State  court— When  tlie 
petition  is  filed,  no  steps  should  be  taken  on  the  cause 
until  it  is  acted  on.i  State  courts  have  the  right  to  ju- 
dicially pass,  for  some  purposes  at  least,  upon  the  suffi- 
ciency of  an  application  for  removal,  and  of  the  accom- 
panying bond.2  The  acceptance  or  rejection  of  the  petition 
involves  a  decision  upon  its  sufficiency  ;3  and  the  State 
court  must  inspect  the  documents,  and  determine  whether 


§  11  h  PROCEEDINGS.  156 

the  conditions  ajjply  or  not.4  An  averment  that  there  is 
a  controversy  that  can  he  fully  determined  is  not  conclu- 
sive, but  may  he  investigated;  ^  so  the  court  may  inquire 
into  the  truth  of  the  facts  alleged. 6  The  adverse  party 
may  deny  the  facts  set  forth  in  the  petition  by  answer  or 
affidavit,  and  produce  evidence  in  support  of  his  denial;  7 
matters  controverted  are  the  only  matters  in  dispute. 8 
Tlie  court  must  be  satisfied  that  the  application  is  founded 
on  facts  which  entitle  the  applicant  to  the  order;  ^  and 
also  that  the  amount  in  disi^ute  is  sufficient.!"  The  peti- 
tioner should  adduce  satisfactory  evidence  at  the  hearing 
of  the  petition;  u  and  if  no  satisfactory  evidence  is  ad- 
duced of  the  truth  of  the  facts  necessary  to  give  the  right 
to  a  removal,  the  prayer  of  the  petitioner  must  be  denied.i^ 
The  State  court  cannot  consider  anj^  matter  which  does 
not  appear  on  the  record,  except  such  as  it  may  judicially 
take  cognizance  of.^^  "Where  the  petition  fails  to  show 
that  the  cause  is  removable,  the  court  should  deny  the 
application.i4  Its  jurisdiction  is  not  thereby  ousted,  nor 
its  subsequent  proceedings  made  erroneous  or  void.^^  It 
cannot  dismiss  the  proceedings  for  non-payment  of  a  tax 
imposed  by  State  law;i<5  nor  stay  proceedings  in  the 
Federal  court  until  costs  of  removal  are  jjaid,  nor  can  it 
issue  execution  for  the  costs.i'  The  State  court  may 
order  a  new  bond  to  be  liled  as  a  substitute  for  a  bond 
given  to  release  property  attached  on  mesne  process.is 

1  People  V.  Superior  Court,  34  111.  356. 

2  McWhinney  v.  Brinker,  64  lad.  360;  Blair  v.  "West  Point  etc.  Co.  7 
Neb.  146. 

3  Carswell  v.  Scliler,  59  Ga.  17;  Lalor  v.  Dunning,  56  How.  Pr.  209; 
Taylor  v.  Kockefeller,  35  Leg.  Int.  284;  Mayo  r.  Tayloi',  8  Cli.  L.  N.  10. 
Contra:  Jones  v.  Amazon  Ins.  Co.  9  Ch.  L.  N.  68;  Dunham  v.  Baird,  2 
Week.  Notes,  52;  Connor  v.  Scott,  4  Dill.  242. 

4  Carswell  tj.  Schley,  59  Ga.  17;  Meyer  r.  Delaware  E.  Constr.  Co. 
100  U.  S.  457. 

5  Clark  v.  Opdyke,  17  N.  Y.  Supr.  383. 

6  Blair  v.  West  Point  Manuf.  Co.  7  Neb.  146;  Burcli  v.  Davenport  & 
St.  P.  R.  Co.  46  Iowa,  449;  Delaware  R.  Constr.  Co.  v.  D.  &  St.  P.  K.Co. 
46  Iowa,  406. 

7  Orosco  V.  Gagliardo,  22  Cal.  83;  Disbrow  v.  Driggs,  8  Abb.  Pr.305, 
note;  Tunstall  v.  Madison,  30  La.  An.  471. 


157  PROCEEDINGS.  §  11   1 

8  Tunstall  v.  Madison,  30  La.  An.  471 ;  Disbrow  v.  Driggs,  8  Abb.  Pr. 
305;  De  Camp  v.  N.  J.  M.  1..  Ins.  Co.  2  Sweeny,  481. 

9  Orosco  V.  Gagliardo,  23  Cal.  83 ;  People  v.  Superior  Court,  34  111. 
336;  Cooley  v.  Lawrence,  12  How.  Pr.  ITti;  S.  C.  5  Duer,  605;  New  York 
Piano  Co.  r.  New  Haven  Steamboat  Co.  2  Abb.  Pr.N.  S.  357;  Tunstall 
r.  Madison,  30  La.  An.  471.  Contra:  Oakey  v.  Bank,  14  La.  515;  Stoker 
V.  Leavenworth,  7  La.  3S)0. 

10  Abranches  v.  Schell,  4Blatchf.  256;  Turton  v.  Union  Pac.  R.  R. 
Co.  3  DiU.  366. 

1 1  Disbrow  v.  Driggs,  8  Abb.  Pr.  305,  note ;  People  v.  Superior  Court, 
34  111.  356;  Louisiana  State  Bank  v.  Morgan,  4  Martin  N.  S.  344. 

12  People  V.  Superior  Court,  34  III.  356. 

13  Savings  Bank  v.  Benton,  2  Met.  (Ky.)  240.  • 

14  Weed  Sew.  Mach.  Co.  v.  Smith,  71  111.  204;  U.  S.  Savings  Inst.  v. 
Brockschmidt,  73  111.  370;  :Mc\Vhiniiey  v.  Lrinker,  64  Ind.  360;  New 
Orleans  etc.  Co.  v.  Recorder,  27  La.  An.  291 ;  Liverpool  Ins.  Co.  v.  Mc- 
Guire.  52  iliss.  227;  Hartford  F.  Ins.  Co.  v.  Green,  52  Miss.  332;  Blair  v. 
"West  Point  etc.  Co.  7  Neb.  146. 

15  Gordons.  Longest.  16  Peters,  97;  Ins.  Co.  v.  Dunn,  19  Wall.  214; 
Kanouset?.  Martin,  14  How.  13;  15  How.  198;  Stevens  v.  Phoenix  Ins. 
Co.  4  IN.  Y.  149;  Holden  r.  Putnam  Fire  Ins.  Co.  46  N.  Y.  1 ;  Savings 
Bank  v.  Benton,  2  Met.  (Ky.)  240;  Blair  v.  West  Point  etc.  Co.7  Neb.  146. 

16  Bragg  v.  Tibbs,  44  Ga.  294. 

17  Mayor  of  New  York  v.  Cooper,  6  Wall.  250;  Penrose  v.  Penrose,  1 
Fed.  Rep.  479. 

18  Ramsey  v.  Coolbaugh,  13  Iowa,  164. 

§  11  i.  Effect  of  proceedings  for  removal.— Pre- 
senting a  i^etition  initiates  the  removal,  and  leaves  the 
State  court  no  jurisdiction  to  take  any  proceedings  other 
than  to  perfect  the  removal;  i  and  the  State  court  has  no 
jurisdiction  to  deny  the  application;"-  the  statute  requir- 
ing it  to  accept  the  petition  and  bond,  and  proceed  no 
farther  in  the  cause.3  Where  a  removal  is  authorized  by 
the  facts  of  the  case  jurisdiction  ceases  and  attaches  in 
tlie  circuit  court,  and  all  further  proceedings  in  the  State 
court  are  coram  nonjudiceA  The  jurisdiction  of  the  State 
court  is  ousted  when  the  j)roceedings  are  regular  ;5  and  if 
the  petition  contains  jiroper  averments,  and  the  petitioner 
complies  with  the  requirements  of  the  law,  the  removal  is 
a  matter  of  right;  ^  and  the  removal  is  imperative  both  on 
the  State  and  the  Federal  court."  The  jusisdiction  is  not 
ipso  facto  suspended  by  the  tiling  of  the  petition  and 
bond;  8  as  the  mere  filing  of  the  petition  and  bond,  unveri- 
fied and  unaccompanied  by  any  proof  of  the  facts  of  citi- 
Desty  Removal.— 14. 


§  11  j  PROCEEDINGS.  158 

zensliip  relied  on,  does  not  oust  the  State  court  of  its 
jurisdiction.9  After  the  petition  is  filed,  complying  with 
the  requisites  of  the  law,  plaintiff  cannot  amend  his 
declarationji*^  nor  dismiss  the  suit.^i  Where  a  sufficient 
cause  is  made,  the  jurisdiction  in  the  State  court  is  at  an 
end,  and  the  jurisdiction  of  the  Federal  court  attaches; 
and  the  fact  that  only  a  part  of  the  record  is  filed  will  not 
oust  it.i2 

1  Fisk  V.  Union  Pac.  K.  R.  Co.  8  Blatchf.  248, 

2  Hatch  V.  Chicago,  R.  I.  &  P.  R.  R.  Co.  6  Blatchf.  105;  Gordon  v. 
Longest,  16  Peters,  97;  Livermore  v.  Jenks,  11  How.  Pr.  479;  James  i». 
Thurston,  6  R.  I.  42S;  Fickliu  v.  Tarver,  59  Ga.  263;  Akerly  r.  Yilas,  2 
isiss.  110. 

3  Manville  v.  W.  U.  Tel.  Co.  2  Cent.  L.  J.  616. 

4  New  York  Silk  Manuf.  Co.  v.  Second  Nat.  Bk.  10  Fed.  Rep.  204. 

5  Shaft  V.  Phoenix  Mut.  L.  Ins.  Co.  67  N.  Y.  544. 

6  Gordon  r.  Longest,  16  Peters,  97;  Fisk  v.  Union  Pac.  R.  R.  Co.  6 
Blatchf.  362;  Matthews  v.  Lyall.6  McLean,  13;  Edwards  r.  Ward,  3 
Bush.  606;  Brown  v.  Crippen,  4  Hen.  &  M.  173;  Butterfield  r.  Home 
Ins.  Co.  14  Minn.  410;  Kennedy  v.  Woolfolk,  1  Tenn.  453. 

7  Dennistoun  v.  Draper,  5  Blatchf.  336. 

8  Nat.  Union  Bk.  v.  Dodge,  11  The  Reporter,  641.  Contra:  la  re 
Iowa  &  Minn.  Min.  Co.  10  Fed.  Rep.  401. 

9  Delaware  etc.  Co.  v.  Davenport  etc.  Co.  46  Iowa,  406;  Removal 
Cases,  100  U.  S.  457;  See  Railway  Co.  v.  Ramsey,  22  Wall.  328. 

10  Livermore  v.  Jenks,  11  How.  Pr.  479. 

11  Beery  v.  Chicago,  R.  I.  &  P.  R.  Co.  64  Mo.  533.  Contra:  Matthews 
V.  Lyell,  6  McLean,  J3. 

12  Clark  w.  Chicago,  M.  &  St.  P.  R.  Co.  11  Fed.  Rep.  355;  Sweet  r. 
Same,  11  Fed.  Rep.  355;  Railroad  Co.  v.  Mississippi,  102  U.  S.  141. 

11  j.   Order  of  removal.— No  formal  order  for  the 

removal  of  the  cause  is  necessary,!  though  the  better 
practice  is  to  make  an  order;  2  yet  it  is  removed  though 
an  order  is  not  passed. ^  So  no  order  accepting  petition 
and  bond  is  necessary.  If  the  statute  has  been  complied 
with,  the  filing  of  the  transcript  vests  jurisdiction  in  the 
Federal  court.*  Neither  an  order  refusing  nor  an  order 
granting  a  removal  can  effect  the  jurisdiction  of  the  cir- 
cuit court.5  When  the  proper  steps  are  taken  and  the 
evidence  is  presented,  the  right  is  perfected,  and  no  action 
of  the  State  court  can  confer  the  right  or  take  it  away.^ 
The  State  court  may  insert  in  the  order  a  provision  that  it 


159  PROCEEDINGS.  §   11  k 

shall  not  operate,  of  itself,  to  dismiss  an  injunction  pre- 
viously issued."  If  an  order  for  removal  is  erroneously 
entered,  the  State  court  may  strike  it  out;^  but  it  cannot 
subsequently  vacate  it  on  the  ground  that  it  was  impru- 
dently or  inadvertently  granted.^  The  order  of  removal 
cannot  be  renewed  by  a  State  court.i''  It  may  be  made 
after  the  appearance  of  the  defendant  ;ii  but  if  obtained 
without  notice  to  the  adverse  party,  he  may  appear  and 
move  to  have  it  vacated.i^ 

1  Osgood  V.  C.  D.  &  V.  Pi.  R.  Co.  6  Biss.  330;  Jones  v.  Amazon  Ins. 
Co.  9  Cli.  L.  N.  68;  Connorr.  8cott,  4  Dill.242;  Fultour.  Golden, 20 Alb. 
L.  .J.  229;  Laloi'  v.  Dunning,  5(j  How.  Pr.  209;  Cbamberlain  v.  Amer.  L. 
&  T.  Co.  18  N.  Y.  Supr.  370;  St.  Anthony's  F.  W.  P.  Co.  v.  King  "William 
Bridge  Co.  23  Minn.  186;  Clippenger  t'.  Mo.  Val.  L.  Ins.  Co.  1  Flippen, 
4o6;  Hatch  v.  Chicago,  K.  I.  &  P.  R.  R.  Co.  6  Blatchf.  105;  Fickliu  v. 
Tarver,  59  Ga.  263. 

2  Jackson  v.  Mut.  L.  Ins.  Co.  60  Ga.  423.  See  Vandervoort  v. 
Palmer,  4  Duer,  677 ;  Jones  v.  Seward,  26  How.  Pr.  433, 

3  Commercial  &  Sav.  B'k  v.  Corbett,  5  Sawy.  172. 
, 4    Kern  r.  Huidekoper,  2  Morr.  Trans.  597. 

5  Fisk  V.  Union  Pac.  R.  R.  Co.  6  Blatchf.  362;  Hatch  v.  Chicago,  Pw 
I.  &  P.  E.  R.  Co.  6  Blatchf.  105;  People  v.  Judges,  2 1  Mich.  577;  Carpen- 
ters. N.  Y.  &  N.  H.  R.  R.  Co.  11  How.  Pr.  481;  Bell  i-.  Dix,  49  N.  Y,  232; 
Cooke  V.  State  Nat.  Bank,  52  N.  Y.  96. 

6  Hatch  V.  Chicago,  R.  I.  etc.  R.  K.  Co.  6  Blatchf.  111. 

7  Liddle  v.  Thatcher,  12  How.  Pr.  294. 

8  Shepherd  r.  Young,  1  Mon.  203. 

9  Chamberlain  r.  Amer.  N.  L.  &  T.  Co.  18  X.  Y.  Supr.  570;  Cissei  v. 
McDonald,  16  Blatchf.  150. 

10  St.  Anthonys  F.  W.  P.  Co.  r.  King  Bridge  Co.  23  Minn.  186;  Ralph 
r.  Claiborne,  2  Mart.  (La.)  176;  Knickerbocker  L.  Ins.  Co.  v.  Gorbach, 
70  Pa.  St.  150;  Chamberlain  v.  Am.  L.  Ins.  Co.  18  N.  Y.  Supr.  570. 

11  Houser  v.  Clayton,  2  Woods.  273. 

12  Lalor  v.  Dunning,  56  How.  Pr.  209. 

§  11  k.  Effect  of  removal.— The  removal  transfers 
the  res  with  the  cause,  as  a  necessary  ijart  of  the  proceed- 
ings; i  and  the  fact  that  a  collateral  issue  with  respect  to 
the  res  have  sprung  up  cannot  destroy  the  right  of  re- 
moval.2  So  if  a  receiver  has  been  api^ointed  in  the  State 
court,  lie  may  be  compelled  to  account  in  the  circuit 
court  after  hearing.3  The  removal  does  not  render  a  de- 
livery bond  imperative,  nor  change  the  obligations  of  the 
sureties:  •*  nor  is  the  action  of  the  State  court  stayed  pend- 


§  11  1  PROCEEDINGS.  IGO 

ing  the  decision  of  the  Federal  court  as  to  tlie  right  of 
removal.^  It  does  not  change  the  nature  of  the  issue,  or 
the  judgment  to  be  rendered. ^  If  the  cause  was  at  issue 
in  the  State  court,  no  other  i)leadings  are  necessary  in 
tlie  circuit  court; '^  and  if  a  declaration  has  been  tiled,  no 
new  declaration  is  needed.^  And  if  complainant  amends 
his  bill,  the  circuit  court  will  not  loose  its  jurisdiction, 
although  the  amended  bill  does  not  show  the  jurisdiction.'^ 

1  Osgood  V.  Chicago,  D.  &  V.  R.  R.  Co.  6  Biss.  330;  Scott  v.  Clinton 
&  S.  li.  It.  Co.  G  Biss.  627;  Kern  v.  Huidekoper,  2  Morr.  Trans.  597. 

2  Osgood  V.  Cliicago,  D.  &  Y.  U.  R.  Co.  6  Biss.  330. 

3  Hinckley  v.  G.  C.  &  S.  R.  R.  Co.  12  Ch.  L.  N.  176. 

4  Ramsey  v.  Coolbaugli,  13  Iowa,  164. 

5  Nat.  Union  Bank  r.  Dodge,  11  The  Reporter,  641. 

6  West  V.  Aurora  City,  6  Wall.  139;  Partridge  v.  Insurance  Co.  15 
Wall.  573;  Du  Vivier  v.  Hopkins,  116  Mass,  128. 

7  Merch.  &  Manuf.  Nat.  Bank  v.  Wheeler,  13  Blatchf.  218. 

8  Bills  V.  New  Orleans.  St.  L.  &  C.  R.  R.  Co.  13  Blatchf,  227;  West  v. 
Smith,  101  U.  S.  263. 

9  Briges  v.  Sperry.  95  U.  S.  401. 

§  11  1.  Practice  and  procedure.— The  case  comes 
into  the  circuit  court  in  the  same  condition  in  which  it 
was  in  the  State  court;  i  so  where  defendant  has  lost  by 
his  inaction  the  right  to  object  to  defective  service  of 
summons  in  the  State  court  he  cannot  be  permitted  to 
plead  it  in  abatement  in  the  circuit  court.^  On  removal 
in  law  cases  pure  and  simijle  no  repleader  is  necessary; 3 
but  when  the  relief  sought  is  both  legal  and  equitable, 
plaintiff  must  replead  in  the  Federal  court.^  So  where  a 
suit  in  a  State  court  unites  legal  and  equitable  matters,  a 
repleader  is  necessary  to  frame  the  pleadings  anew,  so  as 
to  make  it  distinctively  a  suit  at  law,  or  one  in  equity,  or 
to  divide  it  into  two  suits,  one  at  law  and  the  other  in 
equity;  5  and  the  Federal  court  is  competent  to  make  all 
orders  necessary  to  mold  it  into  a  legal  or  equitable  case, 
or  recast  it  into  two  cases,  one  at  law  and  the  otlier  iu 
equity. c  A  law  action  must  jiroceed  as  such,  although 
brought  in  the  name  of  the  real  party  in  interest,  instead 
of  che  party  holdiug  the  bare  legal  title. '^    The  i)ractice 


161  PROCEEDINGS.  §  11  1 

after  removal  is  to  be  the  same  as  if  the  cause  had  origi- 
nally been  brought  in  the  Federal  court ;§  including  the 
allowance  of  amendments  which  may  be  made  in  further- 
ance of  justice,  and  within  the  scope  of  the  original  cause 
of  action,'-^  The  petition  may  be  amended  either  by  cur- 
ing defective  averments,  or  by  substituting  additional  or 
new  allegations;  10  and  where  by  mistake  the  plaintiff  de- 
scribed himself  in  the  original  petition  as  a  cittzen  of  the 
State  where  suit  was  brought,  he  will  be  allowed  to 
amend,  and  state  his  true  citizenship.ii  The  ec[uity  prac- 
tice and  procedure  of  the  Federal  courts  is  regulated  by 
the  rules  promulgated  by  the  supreme  court  of  the 
United  States. i^  State  laws  will  be  enforced  after  re-* 
moval  of  the  cause ;  i^  so  State  laws  as  a  rule  of  property 
will  be  followed. 1^ 

1  Werthein  v.  Contin.  R.  &  T.  Co.  11  Fed.  Rep.  689. 

2  Werthein  v.  Contin.  R.  &  T.  Co.  II  Fed.  Rep.  689. 

3  Merchants  etc.  Nat.  Bk.  v.  Wheeler,  13  Blatchf.  218;  Bills  v.  New 
Orleans  etc.  R.  R.  Co.  13  Blatchf.  227;  Dart  r.  McKiuney,  9  Blatchf.  3.5!». 
See  as  to  former  practice  Martin  f.  Kanouse,  1  Blatchf.  149;  S.  C.  15 
How.  198. 

4  La  Mothe  Manuf.  Co.  v.  Nat.  Tube  Wks.  15  Blatchf.  432. 

5  Green  v.  Custard,  23  How.  484;  Thompson  v.  Railroad  Cos.  6  Wall. 
134;  Partridge  v.  Insurance  Co.  15  Wall.  573;  Hurt  v.  HoUingsworth,  100 
U.  S.  100;  Akerlv  v.  Vilas,  2  Biss.  110;  Fisk  v.  Union  P.  R.  Co.  8  Blachf. 
299;  Dart  v.  McKinney,  9  Blatchf.  359;  Sands  v.  Smith,  1  Dill.  290. 

6  La  Mothe  Manuf.  Co.  v.  Nat.  Tube  Wks.  15  Blatchf.  432;  Sands  v. 
Smith,  1  Dill.  290. 

7  Thompson  v.  Railroad  Cos.  6  Wall.  134;  Weed  Sew.  Mach.  Co.  v. 
Wicks,  3  Dill.  261;  Bushnellr.  Kennedy,  9  Wall.  391;  Knapp  v.  Railroad 
Co.  20  AVall.  117;  Wood  v.  Davis,  18  How.  467.  See  Suydam  v.  Ewing,  2 
Blatchf.  359. 

8  Suydam  v.  Ewing,  2  Blatchf.  359;  Akerly  v.  Vilas,  2  Biss.  110. 

9  Toucey  r.  Bowen.  1  Biss.  81;  Suydam  r.  Ewinsr,  2  Blatchf.  359; 
Barclay  r.  Levee  Comm'rs,  1  Woods,  254;  Dart  v.  McKinney,  9  Blatchf. 
359 ;  Houser  v.  Clayton,  3  Woods,  373.  See  Parker  v.  Overman,  18  How.  137. 

10  Woolridge  v.  McKeuna,  8  Fed.  Rep.  650. 

11  Barclay  v.  Levee  Comm'rs,  1  Woods,  354;  Houser  v.  Clayton,  3 
Woods,  37?;  and  see  record  amended  by  consent,  Parker  v.  Overman, 
18  How.  137. 

12  Martindale  v.  Waas,  12  Fed.  Rep.  551. 

13  Taylor  1'.  Ypsilanti,  4  Morr.  Trans.  326;  Ouachita  Co.  v.  Wolcott, 
2  Morr.  Trans.  548;  S.  C.  11  Fed.  Rep.  623;  Soustiby  v.  Keeley,  11  Fed. 
Rep.  578,  and  note. 

14  Burt  I'.  Keyes,  1  Flippen,  61;  see  Talcott  v.  Pine  Grove,  1  Flip- 
pen,  120. 

15  King  V.  Worthington,  3  Morr.  Trans.  101;  Potter  v.  Nat.  Bank, 
102  U.  S.  163;  Railroad  Co.  v.  Koontz,  3  Morr.  Trans.  34. 


§§   12-12  a  LAXD   GRAFTS.  Ifi2 

§  12.    Land  titles  from  different  States.— If,  in  any 

action  commenced  in  a  State  court,  where  the  title  of  land  is 
concerned,  and  the  parties  are  citizens  of  the  same  State, 
and  the  matter  in  dispute,  ezclusice  of  costs,  exceeds  the 
sum  or  value  office  hundred  dollars,  the  sum  or  value  being 
made  to  appjear  to  the  satisfaction  of  the  court,  either  party, 
before  the  trial,  states  to  the  court,  and  makes  affidavit  if 
they  require  it,  that  he  claims  and  shall  rely  upon  a  right  or 
title  to  the  land  under  a  grant  from  a  State  other  than  that 
in  which  the  suit  is  pending,  and  produces  the  original  grant, 
or  an  exemplification  of  it,  except  zchere  the  loss  of  public 
records  shall  put  it  out  of  his  jwicer,  and  moves  that  the  ad- 
verse party  inform  the  court  ivhether  he  claims  a  right  or 
title  to  the  land  under  a  grant  from  the  State  in  ivhich  the 
suit  is  pending,  the  said  adverse  party  shall  give  such  infor- 
mation, or  otherwise  not  be  allowed,  to  plead  such  grant,  or 
give  it  in  evidence  upon  the  trial ;  and  if  he  gives  information 
that  he  does  claim  under  such  grant,  the  party  claiming 
xinder  the  grant  first  mentioned  may,  on  motion,  remove  the 
cause  for  trial  into  the  next  circuit  court  to  be  holden  in  the 
district  lohere  such  suit  is  pending.  If  the  party  so  removing 
the  cause  is  defendant,  the  removal  sJcall  be  made  under  the 
regidations  governing  removals  of  a  cause  into  such  court  by 
an  alien;  and  neither  party  removing  the  cause  shall  be  al- 
lowed to  plead  or  give  evidence  of  any  other  title  than  tluit 
stated  by  him  as  aforesaid  as  the  ground  of  his  claim. 
Rev.  Stats.  §  647;  1  U.  S.  Stats.  79. 

XoTE. — This  section  repealed  and  consolidated  witb 
section  11,  ante.  Osgood  v.  C.  D.  &  V.  K.  R.  Co.  6  Biss. 
330. 

§  12  a.    Conflicting    land     grants.— Controversies 

between  citizens  claiming  lands  luuler  grants  of  different 
States  are  witliin  tlie  jurisdiction,  notwithstanding  one 
of  the  States  at  the  time  of  the  first  grant  was  a  part  of 
the  other.i  It  is  the  first  grant  which  passes  legal  title 
and  authoi-izes  jurisdiction.'^    If  a  State  issues  a  grant 


163  RECORDS   REFUSED.  §  13 

under  the  authority  of  a  compact  with  another  State,  the 
case  cannot  be  removed.^  The  right  under  this  section 
to  remove  depends  on  the  value  of  the  land,  and  not  on 
the  title; 4  and  witnesses  may  be  produced  to  prove  its 
value.5  The  party  applying  on  the  ground  of  grants  from 
different  States  must  produce  his  grant  in  evidence;  6 
but  a  grant  based  on  a  warrant  and  location  made  before 
the  separation  of  a  part  of  a  State  is  suiScient  showing.^ 
A  party  who  claims  under  a  grant  from  the  State  in 
which  suit  is  pending  cannot  remove  the  case.^ 

1  Town  of  Pawlet  v.  Clark,  9  Cranch,  292. 

2  Colson  V.  Lewis,  2  Wheat.  377. 

3  Tliompson  v.  Kendricks,  5  Hayw.  115. 

4  Thompson  v.  Kendricks,  5  Hayw.  115. 

5  Thompson  v.  Kendricks,  5  Hayw.  115. 

6  Thompson  v.  Kendricks,  5  Hayw.  115. 
Colson  V.  Lewis,  2  Wheat.  377 ;  Town  of  Pawlet  v.  Clark,  9  Cranch, 


292, 


Shepherd  v.  Young,  1  T.  B.  Mon.  203. 


§  13.   Records  refused  by  clerk  of  State  court. — 

In  any  case  ichere  apart//  is  entitled  to  copies  of  the  record 
and  proceedings  in  any  suit  or  prosecution  in  a  State  court, 
to  he  used  in  any  court  of  the  United  States,  if  the  clerk  of 
said  State  court,  upon  demand  and  the  payment  or  tender 
of  the  legal  fees,  refuses  or  neglects  to  deliver  to  him  certified 
copies  of  such  records  and  proceedings,  the  court  of  the 
United  States  in  v:hich  such  record  and  proceedings  are 
needed  may,  on  proof  by  affidavit  that  the  clerk  of  said  State 
court  has  refused  or  neglected  to  deliver  copies  thereof  on 
demand  as  aforesaid,  direct  such  record  to  be  supplied  by 
affidavit  or  otherwise,  as  the  circumstances  of  the  case  may 
require  and  alloio ;  and  therettpon  such  proceeding,  trial, 
and  judgment  may  be  had  in  the  said  court  of  the  United 
States,  and  all  such  processes  awarded,  as  if  certified  copies 
of  such  records  and  i)roceedings  had  been  regularly  before 
the  said  court. 

Eev.  Stats.  g645;  4  U.  S.  Stats.  634;  16  U.  S.  Stats.  439. 


§  14  TIME  TO  FILE  APPLICATION.  164- 

Note.— The  Act  of  March  3,  1875,  consolidated  and 
repealed  all  previous  general  acts.  Osgood  C.  D.  &  V. 
II.  E.  Co.  6  Biss.  330. 

§  14.  Time  to  file  record— Misfeasance  of  clerk 
—Certiorari. — That  in  all  causes  removable  under  this  act, 
if  the  term  of  the  circuit  court  to  which  the  same  is  remor- 
uble,  then  next  to  be  holden,  shall  commence  within  twenty 
days  after  JiUng  the  jjetition  and  bond  in  the  State  court  for 
its  removal,  then  he  or  they  tcho  apply  to  remove  the  same 
shall  have  twenty  days  from  such  application  to  file  said  copy 
of  record  in  said  circuit  court  and  enter  appearance  therein; 
and  if  done  within  said  tioenty  days,  such  filing  and  appear- 
ance shall  be  taken  to  satisfy  the  said  bond  in  that  behalf; 
that  if  the  clerk  of  the  State  court  in  lohich  any  such  cause 
shall  be  pending  shall  refuse  to  any  one  or  more  of  the  par- 
ties or  persons  applying  to  remove  the  same  a  copy  of  the 
record  therein,  after  tender  of  legal  fees  for  such  copy,  said 
clerk  so  offending  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  on  conviction  thereof  in  the  circuit  court  of  the  United 
States  to  which  said  action  or  proceeding  was  removed,  shall 
be  punished  by  imprisonment  not  more  than  one  year,  or  by 
fine  not  exceeding  §1,000,  or  both,  in  the  discretion  of  the 
court.  And  the  circuit  court  to  ichich  any  cause  shall  be  re- 
movable under  this  act  shall  have  power  to  issue  a  writ  of 
certiorari  to  said  State  court,  commanding  said  State  court 
to  make  return  of  the  record  in  any  such  cause  removed  as 
aforesaid,  or  in  lohich  any  one  or  more  of  the  ptlaintiffs  or 
defendants  have  complied  vrith  the  provisions  of  this  act  for 
the  removal  of  the  same,  and  enforce  said  writ  according  to 
laic ;  and  if  it  shall  be  impossible  for  the  parties  or  persons 
removing  any  cause  under  this  act,  or  complying  with  its 
provisions  for  the  removal  thereof,  to  obtain  such  copy,  for 
the  reason  that  the  clerk  of  said  State  court  refuses  to  fur- 
nish a  copy  on  payment  of  legal  fees,  or  for  any  other  reason, 
the  circuit  court  shall  make  an  order  requiring  the  pros- 
ecutor in  any  such  action  or  proceeding  to  enforce  forfeiture 


1G5  TniE  TO   FILE  APPLICATION.  §  14  a 

or  recover  penalty  as  aforesaid,  to  file  a  copy  of  the  paper  or 
proceeding  by  which  the  same  ivas  commenced,  loithin  such 
time  as  the  court  may  determine ;  and  in  default  thereof  the 
court  shall  dismiss  the  said  action  or  proceeding ;  hut  if  said 
order  shall  he  complied  with,  then  said  circuit  court  shall 
require  the  other  loarty  to  plead,  and  said  action  or  proceed- 
ing shall  proceed  to  final  judgment ;  and  the  said  circuit 
court  may  make  an  order  requiring  the  x>arties  thereto  to 
plead  de  novo ;  and  the  hond  given,  conditioned  as  aforesaid, 
shall  he  discharged  so  far  as  it  requires  a  copy  of  the  record 
to  be  filed  as  aforesaid. 
Act  March  3, 1875,  §  7. 

§  14  a.  The  record.— The  coi^y  of  the  record  must 
be  duly  certilied,i  and  detached  papers  may  be  certified 
to,  and  may  constitute  the  record  if  duly  certified.^  The 
cause  is  removed  as  of  the  date  when  the  motion  is  made, 
and  the  papers  should  be  certified  as  of  that  date;  3  but  it 
is  not  sufficient  to  enter  merely  a  copy  of  the  summons;  4 
"  process  "  is  equivalent  to  proceedings.5  It  is  not  neces- 
sary that  the  fact  of  alienage  or  citizenship  should  appear 
on  the  record  of  the  original  i^roceedings.s  Y/here  a 
cause  has  been  removed,  and  all  the  papers  subsequently 
destroyed  by  fire,  and  the  parties  admit  the  cause  was 
transferred  in  accordance  with  the  statute,  the  court  may 
presume  that  the  requisite  citizenship  was  shown; ^  so 
the  record  may  be  amended  by  consent;  s  and  where  the 
record  at  the  time  of  removal  did  disclose  the  fact,  the 
transcrijit  in  the  Federal  court  may  be  amended  so  as  to 
conform  to  the  State  record;'-*  but  whether  the  record  in 
the  State  court  may  be  amended  so  as  to  conform  to  the 
statute  after  the  term  has  passed,  qusere?'^^  An  amend- 
ment to  the  transcript  may  be  filed  where  the  record 
does  not  disclose  the  requisite  citizenship. i^ 

1  Martin  v.  Kanouse,  1  Blatchf.  149. 

2  Commercial  &  S.  Bk.  v.  Corbet,  5  Sawy.  172. 

3  Clark  v.  Delaware  etc.  Can.  Co.  11  R.  I.  36. 

4  McBratney  i-.  Usher,  1  DiU.  367. 


§§  14  b-C  TLME   TO  FILE  APPLICATION.  106 

5  McBratney  v.  Usher,  1  Dill.  367.  j 

6  Ladd  v.  Tudor,  3  Wood.  &  M.  325;  Frauciscus  v.  Surget, 6  Eobt.  33. 

7  Railway  Co.  v.  Eamsey,  22  Wall.  328. 

8  Hodgson  v.  Bowerbank,  5  Crancli,  303.  See  Parker  v.  Overman, 
18  How.  137. 

9  Kaeiser  v.  Hlinois  Cent.  R.  R.  Co.  6  Fed.  Rep.  1. 

10  Kaeiser  v.  Hlinois  Cent.  R.  R,  Co.  6  Fed.  Rep.  1. 

11  Kaeiser  v.  Hlinois  Cent.  R.  R.  Co.  6  Fed.  Rep.  1. 

§  14  b.  Time  to  file  record.— The  jurisdiction  is  not 
complete  in  the  Federal  court  before  the  day  prescribed 
by  the  statute,  although  a  transcript  has  been  tiled;  i  nor 
can  the  circuit  court  proceed  until  coj^ies  of  the  proceed- 
ings are  entered  there.^  The  provision  as  to  the  filing  of 
the  transcript  is  mandatory  only  as  a  matter  of  practice, 
and  the  defect  may  be  cured  by  allowing  it  to  be  filed 
nunc  pro  tuno.^  It  may  be  filed  at  any  time  within  the 
period  allowed  by  the  State  statute  ;•*  before  the  com- 
mencement of  the  next  term  after  the  removal ;  ^  and  it  is 
sufficient,  although  a  term  devoted  exclusively  to  crim- 
inal cases  has  intervened.<5  The  j^roper  time  for  entering 
in  the  circuit  court  "  copies  of  the  papers,"  etc.,  is  on  the 
first  day  of  the  next  session  after  the  filing  of  the  petition, 
etc.,  but  in  any  event  the  moving  party  has  twenty  days 
to  file  a  copy  of  the  record.'  The  only  necessary  conse- 
quence of  failure  to  file  the  record  by  the  first  day  of  the 
next  term  after  application,  or  within  twenty  days  there- 
after, is  to  create  a  liability  on  the  bond.s 

1  Matt,  of  Barnesville  &  M.  R.  R.  Co.  4  Fed.  Rep.  10. 

2  Fisk  f.  Union  Pac.  R.  R.  Co.  6  Blatchf.  362;  Clippenger  r.  Mo. 
Val.  L.  lus.  Co.  1  Fllppeu,  456;  8  Ch.  L.  N.  155. 

3  Woolridgc  v.  McKenna,  8  Fed.  Rep.  650. 

4  Railroad  Co.  v.  Koontz,  3  Morr.  Trans.  34;  King  i'.  Wortbington, 
3  Morr.  Trans.  101. 

5  Bowen  v.  Kendall,  23  The  Reporter,  538. 

6  Jones  v.  Ocean  S.  N.  Co.  11  Blatchf.  406.  \ 

7  Clippenger  v.  Mo.  Val.  L.  Ins.  Co.  1  Flippen,  456;  S.  C.  8  Ch.  L. 

8  Kidder  v.  Ftatteau,  2  Fed.  Rep.  616. 

§  14  c.  Duty  of  clerk.— If  a  clerk  refuses  to  furnish 
copies  of  the  record  and  proceedings,  this  court  will  allow 


167  TDIE  TO  FILE  APPLICATION.  §  14  d 

parties  to  supply  tliem;i  and  the  petitioner  may  file  a 
copy  thereof  in  the  circuit  court.2  If  he  has  done  all  that 
is  necessary,  he  may  perfect  the  removal  by  entering  in 
the  Federal  court  at  the  proper  time  copies  of  proper 
papers,  and  his  appearance  and  special  bail  if  necessary.3 
The  clerk  of  the  State  court  has  no  right  to  withhold  the 
transcript,  although  an  appeal  has  been  taken. ^ 

1  Akerly  v.  Vilas,  2  Biss.  110. 

2  Akerly  v.  Vilas,  2  Biss.  110. 

3  Hatch  V.  Chicago,  K.  I.  etc.  Co.  6  Blatchf .  105. 

4  Akerly  v.  Vilas,  2  Biss.  110. 

§  14  d.  Certiorari.— A  removal  is  effected  by  certiorari 
from  the  Federal  court,  or  by  order  of  the  State  court.i 
The  writ  is  often  resorted  to  as  a  means  of  effecting,  pur- 
suant to  law,  the  removal  of  the  record  from  one  court  to 
another;  2  so  a  defect  or  omission  in  the  transcript  may  be 
cured  by  certiorari.^  As  where  a  copy  of  the  record  is 
incomplete;  4  but  the  writ  is  unnecessary  when  the  record 
is  already  before  the  Federal  court.^  The  object  of  the 
writ  is  to  require  the  State  court  to  certify  the  copy  of  the 
record  ;<*  and  requires  the  clerk  to  certify  to  the  same;''^ 
and  his  authentication  is  sufficient  without  the  certificate 
of  the  judge;  ^  and  the  authentication  may  be  on  separate 
sheets  of  paper.9  The  Federal  court  may  issue  a  certiorari 
to  the  State  court,  to  which  a  return  that  an  appeal  had 
been  taken  would  be  insufficient.io  This  section  provides 
that  this  writ  shall  command  the  State  court  to  make 
return  of  the  record  of  the  cause  removed;  11  and  the 
mandate  that  the  State  court  shall  proceed  no  farther  in 
the  cause  is  obligatory,  as  well  on  appeal  as  in  the  court 
of  original  jurisdiction. i^  The  enforcement  of  proceedings 
for  removal  may  be  by  mandamus;  13  but  without  express 
authority  by  statute,  a  Federal  court  cannot  issue  a  writ 
of  mandamus  to  the  State  court;  I'l  and  no  jurisdiction  is 
conferred  to  issue  a  mandamus  under  this  statute  ;15  so 
the  circuit  court  has  no  jurisdiction  of  a  writ  of  certiorari 


§  15  ATTACHMENTS,    ETC.  168 

to  a  State  court  for  the  removal  of  proceedings  by  the 
State  against  a  railroad  company  under  tlie  statute  of  tlie 
State.iG 

1  Nat.  Union  B'k  v.  Dodge,  11  The  Reporter,  641. 

2  U.  S.  V.  ilcKee,  4  Dill.  1;  S.  C.  3  Cent.  L.  J.  292;  State  v.  Gibbons, 
1  South.  44. 

3  Dennis  v.  Alachua  Co.  3  "Woods,  683;  Cook  v.  Whitney,  3  Woods, 
715. 

4  Commercial  Savings  Bank  v.  Corbett,  5  Sawy.  172;  Dennis  v. 
Alachua  Co.  3  Woods,  683;  Cook  v.  Whitney,  3  Woods,  715. 

5  Scott  r.  Clinton  &  Springfield R.  R.  Co.  6Biss.  529;  S.  C.8Ch.  L.N. 
210;  In  re  Wells,  3  Woods,  128;  S.  C.  17  Alb.  L.  J.  111. 

G  Broadnax  v.  Eisner,  13  Blatchf.  366. 

7  Broadnax  v.  Eisner,  13  Blatchf.  366. 

8  Osgood  t'.  Railroad  Co.  6  Biss.  330. 

9  Commercial  &  S.  Bank  v.  Corbett,  5  Sawy.  172. 

10  Ellermau  v.  New  Orleans  E.  R.  Co.  2  Woods,  120;  Ins.  Co.  v. 
Morse,  20  Wall.  445.    See  Bell  v.  Dix,  49  N.  Y.  232. 

11  U.  S.  V.  McKee,  4  Dill.  1 ;  S.  C.  3  Cent.  L.  J.  292. 

12  Holden  v.  Putnam  F.  Ins.  Co.  46  N.  Y.  1. 

13  Spraggins  v.  Countv  Court,  Cooke.  160,  citing  Ladd  r.  Tudor,  3 
Wood.  &  M;  and  see  Ex  i)arte  Turner,  3  Wall.  Jr.  2.5«. 

14  Houoh  V.  Western  Trans.  Co.  1  Biss.  425.  See  In  re  Cromie,  2 
Biss.  160;  Fisk  v.  Union  Pacif.  R.  R.  Co.  6  Blatchf.  362. 

15  Amer.  U.  Tel.  Co.  v.  Bell  Telephone  Co.  1  Fed.  Rep.  698. 

16  State  V.  Chicago  A-  A.  R.  R.  Co.  6  Biss.  107. 

§  15.  Attachments,  iujunctions,  and  bonds  re- 
main in  force.— When  a  suit  is  removed  for  trial  from  a 
State  court  to  a  circuit  court,  as  provided  in  the  foregoing 
sections,  any  attachment  of  the  goods  or  estate  of  the  defend- 
ant by  the  original  process  shall  hold  the  same  to  answer  the 
final  judgment,  in  the  same  manner  as  by  the  laics  of  such 
State  they  icould  have  been  held  to  answer  final  judgment 
had  it  been  rendered  by  the  court  in  ivhich  the  suit  was  com- 
menced ;  and  any  injunction  granted  before  the  removal  of 
the  cause  against  the  defendant  applying  for  its  removal 
shall  continue  in  force  until  modified  or  dissolved  by  the 
United  States  court  into  ivhich  the  cause  is  removed;  and 
any  bond  of  indemnity  or  other  obligation,  given  by  the 
plaintiff  upon  the  issuing  or  granting  of  any  attachment, 
writ  of  injunction,  or  other  restraining  process,  against 
the  defendant   petitioning  for  the  removal  of   the  cause, 


1G9  ATTACHMENTS,    ETC.  §§  15  a-b 

shall  also  continue  in  full  force  and  mail  &e  prosecuted  by  the 
defendant,  and  made  available  for  his  indemnitfj  in  case 
the  attachment,  injunction,  or  other  restraining  process  be 
set  aside  or  dissolved,  or  judgment  be  rendered  in  his  favor, 
in  the  same  manner  and  loith  the  same  effect  as  if  such  at- 
tachment, injunction,  or  other  restraining  process  had  been 
granted,  and  such  bond  had  been  originally  filed  or  given  in 
such  State  court. 

Rev.  Stats.  §  646;  1  U.  S.  Stats.  79;  14  id.  306;  14  id.  55S;  15  id.  227; 
14  id.  27;  12  id.  756;  14  id.  46;  14  id.  3^5;  4  id.  633;  14  id.  171;  16  id.  438, 
439. 

§  15  a.  In  general.— The  statutes  of  1833,  1863,  and 
1868  are  statutes  where  the  right  of  removal  depends  on 
the  subject-matter  of  the  suit;i  and  under  all  three  acts, 
the  whole  suit  must  be  removed.^  The  jurisdiction  of  the 
circuit  court  under  the  Act  of  1863  is  not  taken  away  by 
the  Act  of  1867;  3  but  so  much  of  this  section  as  j)rovides 
for  the  removal  of  a  judgment  where  the  cause  was  tried 
by  a  jury  is  in  conflict  with  the  Seventh  Amendment  of 
the  Constittition,  and  is  void."*  Orders  made  in  the  State 
court,  but  not  complied  with,  should  be  recognized  and 
enforced  after  removal,  unless  set  aside  or  modified  in  the 
Federal  court.^  Original  process  includes  any  process  is- 
suing out  of  the  State  court.6  This  section  is  not  affected 
by  the  provisions  of  Eev.  Stats.  §  720.^ 

1  Fisk  V.  Union  Pac.  R.  R.  Co.  6  Blatchf.  362. 

2  Fisk  V.  Union  Pac.  K.  E.  Co.  6  Blatchf.  362. 

3  Lamar  v.  Dana.  19  Blatclif.  34. 

4  Justices  V.  Murray,  9  Wall.  274. 

5  Williams  Mow.  &  R.  Co.  v.  Raynor,  7  Biss.  245. 

6  Barney  v.  Globe  Bank,  5  Blatchf.  107. 

7  Perry  v.  Sharpe,  8  Fed.  Kep.  24. 

§  15  b.  Attachments.— The  circuit  court  becomes 
clothed  with  the  powers  of  the  State  court  under  this 
section. 1  And  attachments  hold  the  property  after  re- 
moval; 2  and  if  the  party  had  made  application  for  an 
attachment,  he  may  proceed  to  get  an  attachment  after 
Desty  removal.— 15. 


§   15  C  ATTACHMENTS,   ETC.  170 

the  removal.3  If  an  action  by  attachment  against  a  non- 
resident is  removed,  the  circuit  court  may  ijroceed  in  the 
cause  ;*i  and  if  it  takes  precedence  over  an  assignment 
under  the  State  law  the  circuit  court  may  enforce  it; 5  but 
if  it  be  a  separate  process,  it  will  not  carry  with  it  a  lien 
on  the  property  in  case  of  removal.^  A  motion  to  dis- 
solve an  attachment  when  authorized  by  the  State  law 
may  be  made  in  the  circuit  court,  and  if  denied  may  be 
renewed,  in  the  discretion  of  the  court;''  such  motion 
may  be  made  after  removal  if  authorized  under  the 
State  laws  and  practice.  § 

1  Garden  City  Manuf .  Co.  v.  Smith,  1  Dill.  305. 

2  New  England  Screw  Co.  r.  Bliven,  3  Blatchf  240.  See,  under 
Judiciary  Act,  Barney  v.  Globe  Bank,  5  Blatchf.  107. 

3  Bills  V.  N.  O.  St.  L.  &  C.  K.  R.  Co.  13  Blatchf.  227. 

4  U.  S.  V.  Ottuian,  1  Hughes,  313. 

5  Clarke  f.  F.  C.  &M.  Ins.  Co,  21  Law  Reporter,  394. 

6  New  England  Screw  Co.  v.  Bliven,  3  Blatchf.  240. 

7  Garden  City  Manuf.  Co.  v.  Smith,  1  Dill.  305. 

8  Garden  City  Manuf.  Co.  v.  Smith,  1  Dill.  305. 

§  15  c.  Injunction.— An  injunction  issued  by  a  State 
court  remains  in  force  till  modified  or  dissolved  by  the 
circuit  court;!  and  it  may  maintain,  continue,  modify,  or 
dissolve  the  injunction  issued  by  the  State  court.2  Upon 
the  modification  of  an  injunction  it  may  require,  as  a  con- 
dition, that  defendant  gave  a  bond  to  secure  plaintiff 
against  any  injury  which  may  result,  or  to  perform  the  final 
decree  concerning  the  same.3  Upon  removal,  an  injunc- 
tion will  not  be  dissolved  upon  the  ground  that  the  bill 
filed  was  not  verified  according  to  law  and  practice  of  the 
courts  of  chancery .4  An  application  to  dissolve  an  in- 
junction could  not  be  considered  before  the  return  day, 
where  it  involved  the  case  as  an  entirety,  or  where  it 
would  change  the  status  of  the  parties.^  Under  the  Act 
of  1866  an  injunction  issued  by  the  State  court  was,  ijjso 
facto,  dissolved  by  the  removal,  as  no  mention  is  made  of 
injunctions  in  said  act. 6 

1    Peters  v.  Peters,  41  Ga.  242. 


171  ATTACIOIENTS,  ETC.  §§  16-16  a 

2  Watson  v.  Bondurant,  2  Woods,  166;  Smith  r.  Schwed,6Fed.  Rep. 
455. 

3  City  of  Portland  v.  Oregonian  R.  Co.  7  Pac.  Coast  L.  J.  376. 

4  Smith  V.  Schwed,  6  Fed.  Rep.  455. 

5  New  Orleans  City  R.  Co.  v.  Crescent  City  R.  Co.  5  Fed.  Rep.  160. 

6  McLeod  v.  Duncan,  5  McLean,  343;  Hatch  v.  Chicago,  R.  I.  &  P. 
R.  R.  Co.  6  Blatchf.  105. 

§  16.  Process,  not  affected  hy.— That  lohen  any  suit 
shall  be  removed  from  a  State  court  to  a  circuit  court  of  the 
United  States,  any  attachment  or  sequestration  of  the  goods 
or  estate  of  the  defendant  had  in  such  suit  in  the  State  court 
shall  hold  the  goods  or  estate  so  attached  or  sequestered  to 
answer  the  final  judgment  or  decree  in  the  same  manner  as 
by  laio  they  woidd  have  been  held  to  answer  final  judgment 
or  decree  had  it  been  rendered  by  the  court  in  which  such 
suit  was  commenced;  and  all  bonds,  undertakings,  or  secu- 
rity given  by  either  party  in  such  suit  prior  to  its  removal 
shall  remain  valid  and  effectual  notwithstanding  said  remov- 
al;  and  all  injunctions,  orders,  and  other  proceedings  had 
in  such  suit  prior  to  its  removal  shall  remain  in  full  force 
and  effect  until  dissolved  or  modified  by  the  court  to  vjhich 
such  suit  shall  be  removed 

Act  of  March  3, 1875,  §  4. 

§  16  a.  Original  process. — The  intention  of  this  section 
is  to  clothe  the  circuit  court  with  the  j^owers  of  the  State 
court  in  administering  remedies;  i  and  if  an  attachment 
prevail  over  an  assignment  under  the  State  law,  it  will 
have  the  same  effect  in  the  circuit  court;  ^  and  if  an  in- 
junction has  been  granted,  it  remains  in  force  until  modi- 
fied or  dissolved  by  the  circuit  court.3  "Original  process  " 
includes  mesne  process  issuing  out  of  the  State  court;  so 
an  attachment,  though  issued  after  summons,  is  pre- 
served.4  So  a  motion  to  dissolve  an  attacnment  may  be 
made  after  removal  to  the  circuit  court.^  It  is  the  inten- 
tion of  the  law  to  authorize  and  require  that  the  question 
of  dissolving,  continuing,  or  perpetuating  an  injunction 
shall  be  dealt  with  by  the  courts  of  the  United  States. 6 


§§  17-17  a  REMANDING  CAUSE.  172 

1  Garden  City  Mauuf .  Co.  v.  Smith,  1  Dill.  .305. 

2  Clarke  v.  F.  C.  &  M.  Iiis.  Co.  21  Law  Reporter,  394. 

3  Northwestern  D.  Co.  v.  Corse,  4  Biss.  514;  McLeod  v.  Duncan,  5 
McLean,  342;  Peters r.  Peters,  41  Ga.  242.  See  Hatch  v.  Chicago,  R.  1. 
&  P.  R.  R.  Co.  6  Blatchf.  105. 

4  Barney  v.  Globe  Banls,  5  Blatchf.  107.  But  see  New  England 
Screw  Co.  v.  Bliven,  3  Blatchf.  240. 

5  Garden  City  Manuf.  Co.  v.  Smith,  1  Dill.  305. 

6  Perry  v.  Sharpe,  8  Fed.  Rep.  24.  See  In  re  County  Judges  of 
Virginia,  3  Hughes,  576. 

§  17.  Dismissal,  ■when.—  That  if,  in  any  suit  com- 
menced in  a  circuit  court,  or  removed  from  a  State  court  to 
a  circuit  court  of  the  United  States,  it  shall  appear  to  the 
satisfaction  of  said  circuit  court,  at  any  time  after  such  suit 
has  been  brouf/ht  or  removed  thereto,  that  such  suit  does  not 
really  and  substantially  involve  a  dispute  or  controversy 
properly  ivithin  the  jurisdiction  of  said  circuit  court,  or  that 
the  parties  to  said  suit  have  been  improperly  or  collusively 
made  or  joined,  either  as  X)laintiffs  or  defendants,  for  the 
purpose  of  creating  a  case  cognizable  or  removable  under 
this  act ;  the  said  circuit  court  shall  proceed  no  farther  there- 
in, but  shall  dismiss  the  suit  or  remand  it  to  the  court  from, 
which  it  loas  removed,  as  justice  may  require,  and  shall 
make  such  order  as  to  costs  as  shall  be  just,  but  the  order  of 
said  circuit  court  dismissiny  or  remanding  said  cause  to  the 
State  court  shall  be  revieioable  by  the  supreme  court  on 
writ  of  error  or  appeal,  as  the  case  may  be. 

Act  of  March  3,  1875,  §  5. 

§  17  a.  Remanding  cause— "Want  of  jurisdiction. 

— The  court  will,  without  formal  motion,  take  notice  of  a 
jurisdictional  matter  which  is  ground  to  remand  the 
cause.  1  So  if  the  petition  and  affidavit  fail  to  bring  the 
case  within  the  statute,  it  is  the  duty  of  the  circuit  court 
to  remand  it.^  If  the  case  does  not  substantially  involve 
a  controversy  within  the  jurisdiction  of  the  court,  it  will 
be  the  duty  of  the  court  to  remand  it.s  Where  the  juris- 
diction is  not  clear  as  to  whether  a  party  is  a  necessary 
or  formal  party,  and  there  is  no  controversy  wholly  be- 


173  KEMANDIXG  CAUSE.  §  17  a 

tween  citizens  of  different  States  which  can  be  fully 
determined,  the  cause  will  be  remanded.^  If  the  case  is 
not  one  of  Federal  cognizance,  it  may  be  dismissed  or 
remanded  at  any  stage  of  the  i^roceedings.^  The  Federal 
court  cannot  proceed  unless  it  has  jurisdiction,  whatever 
the  condition  of  the  parties  may  be,G  and  it  must  deter- 
naine  for  itself  the  question  of  jurisdiction.'  Where  the 
jurisdictional  facts  are  contested  the  circuit  court  will  not 
determine  them  on  a  motion  to  remand  the  cause. ^  The 
cause  will  be  remanded  where  the  proceeding  is  under  a 
local  statute,  and  could  not  be  litigated  in  a  United 
States  court. 9  The  objection  to  the  want  of  jurisdiction, 
appearing  on  the  face  of  the  record  must  be  taken  by 
motion  to  remand.io  The  record,  including  the  petition, 
must  show  jurisdiction  in  the  circuit  court,  and  any 
omission  11  not  afterwards  supplied  is  cause  for  a  re- 
mand; but  if  the  proceedings  are  so  amended  as  to 
remove  all  objections,  the  cause  will  not  be  remanded.i^ 
That  a  suit  may  be  removed  to,  although  it  could  not  be 
originally  brought  in,  the  Federal  court,  is  not  affected 
by  the  provision  for  the  dismissal  or  remanding  of  suits 
not  really  and  substantially  involving  a  dispute  or  con- 
troversy within  the  jurisdiction  of  the  circuit  courts. i^ 
The  cause  cannot  be  remanded  on  the  ground  that  it  is 
not  susceptible  of  decision  after  comx)lainant  files  a  new 
bill  in  the  circuit  court. i^ 

1  Beede  v.  Clieeney,  5  Fed.  Rep.  388. 

2  Deanistoun  v.  Draper,  5  BlatcM .  336. 

3  Stevens  v.  Richardson,  13  The  Reporter,  678;  Railroad  Co.  v. 
Mississippi,  102  U.  S.  135;  Ryau  v.  Young,  20  Alb.  L.  J.  79;  8  The  Re- 
porter,  229. 

4  Evans  v.  Faxon,  10  Fed.  Rep.  312. 

5  Dennistoun  v.  Draper,  5  Blatchf.  336;  Pollard  v.  Dwight,  4 
Cranch,  421;  Wood  v.  Matthews,  2  Blatchf,  370;  Murray  v.  Patrie,  5 
Blatchf.  343. 

6  McMurdy  v.  Conn.  G.  L.  Ins.  Co.  9  Ch.  L.  N.  324;  Young  v.  Andes 
Ins.  Co.  3  Cent.  L.  J.  719. 

7  Field  v.  Lownsdale,  Deady,  288. 

8  Dennistoun  v.  Draper,  5  Blatchf.  336;  Hodson  v.  Milward,  3 
Grant,  418. 

9  Lehigh  Co.  v.  Central  R.  R.  Co.  4  Week.  N.  187. 


§  17   b  REMANDIXG  CAUSE  174 

10  Hoyt  V.  Wright,  4  Fed.  Rep.  168. 

11  Traftou  v.  Nougues,  4  Sawy.  178;  Gold  W.  &  W.  Co.  v.  Keyes,  96 
U.  S.  199. 

12  Edgerton  v.  Gilpin,  3  Woods,  277. 

13  Warner  v.  Pennsylvania  R.  R.  Co.  13  Blatclu.  231. 

14  Carrington  v.  Florida  R.  R.  Co.  9  Blatchf.  467. 

§  17  b.  Motion  to  remand. — A  motion  to  remand 
will  not  be  entertained,  unless  from  unavoidable  neces- 
sity, to  ascertain  the  approj^riate  tribunal  to  hear  and 
determine  the  case;i  and  the  question  of  the  right  to 
remove  cannot  be  raised  on  motion  before  trial,  but  at  the 
trial  it  may.2  A  plaintiff  may  move  to  dismiss,  although 
two  terms  have  elapsed  since  the  filing  of  the  trans- 
cript, if  he  has  not  appeared  and  pleaded.^  The  party 
who  alleges  that  the  removal  has  been  improperly 
made  must  make  such  fact  clearly  appear; 4  and  the 
admission  by  an  attorney  of  service  of  a  rule  to  plead 
is  an  admission  of  the  regularity  of  the  proceeding.5 
If  a  case  has  been  improperly  removed,  the  circuit  court 
may  remand  it,o  although  the  party  seeking  a  removal 
has  filed  a  cross  bill  in  the  circuit  court  against  parties 
who  are  all  citizens  of  a  different  State."  So,  also,  if 
an  order  for  removal  was  improperly  made.^  That  the 
proceedings  sought  to  be  removed  are  a  mere  mode  of 
execution  and  relief  inseparably  connected  Avith  the 
original  judgment,  will  be  grounds  for  remand  ;9  but 
otherwise,  if  they  constitute  an  independent  controversy, 
with  new  parties  and  new  liabilities.^  When  a  cause  is 
once  removed,  and  there  are  no  jurisdictional  objections 
to  its  remaining,  it  will  not  be  remanded  for  defects  or 
irregularities  that  can  be  remedied,  or  which  have  not 
worked  any  prejudice  to  the  opposite  party. n  "Where  the 
cause  is  one  of  Federal  cognizance,  the  right  to  have  it 
remanded  because  of  defects  in  the  mode  of  remoA^al  may 
be  waived;!^  but  there  is  no  waiver  of  the  right  where 
the  cause  is  not  really  and  substantially  one  of  Federal 
jurisdiction. 13    This  section  did  not  intend  that  the  suit 


175  REMAKDING  CAUSE.  §  17  b 

should  be  dismissed  or  remanded  on  acconnt  of  irregular- 
ities provided  it  satisfactorily  appears  that  the  circuit 
court  has  jurisdiction.!^  If  the  citizenship  of  the  peti- 
tioner is  in  dispute,  the  question  will  not  be  decided  on 
motion  to  remand. i^  "Where  there  is  no  allegation  as  to 
the  citizenship  of  the  plaintiff,  the  cause  will  be  re- 
manded ;is  or  where  citizenship  is  alleged  in  the  jDresent 
tense;  17  and  the  objection  will  not  be  entertained  if  the 
information  concerning  his  interest  is  vague  or  undefined, 
or  there  is  delay  in  making  the  objection. is  Where  a 
suit  is  removed  on  account  of  alienage,  it  will  not  be 
remanded  for  the  reason  that  the  alien  subsequer<<^ly  be- 
came a  citizen.  19  If  the  citizenship  of  i^etitioner  is  not  seri- 
ously contested,  the  case  may  be  remanded  on  motion.^'J 
Where  a  minor  was  a  party,  it  was  held  that  he  was 
incapable  of  consenting  to  the  removal,  and  the  cause 
was  remanded.2i  The  motion  to  remand  admits  the  facts 
set  out  in  the  petition, 22  and  the  truth  of  the  averments 
made  in  the  petition  cannot  then  be  inquired  into.23  if 
the  petition  and  the  record  state,  as  grounds  of  removal, 
facts  which  are  not  true  as  to  citizenshii:),  or  value  where 
value  does  not  appear  in  the  pleadings,  issue  may  be 
taken  thereon  by  j)lea  on  abatement  in  the  circuit  court. ^4 
On  the  determination  of  a  State  court  that  the  petition  is 
sufificient,  it  will  be  the  duty  of  the  Federal  court  to 
remand  the  cause.^s  Wliere  the  prayer  of  the  petition 
did  not  ask  for  a  removal  of  the  entire  suit  under  the  Act 
of  1875i  the  cause  will  be  remanded.25 

1  Dennistoun  v.  Draper,  5  Blatchf.  336. 

2  Dennistoun  v.  Draper,  5  Blatchf.  386. 

3  Price  V.  Sommers,  8  Cli.  L.  N.  290. 

4  Hodson  V.  Millward,  3  Grant,  418. 

5  Abranclies  v.  Schell,  4  Blatchf.  256. 

6  Pollard  V.  Dwight,  4  Cranch,421;  Urtetique  v.  D'Arcv,  9  Peters, 
692;  Ins.  Co.  v.  Francis,  11  Wall.  210;  Field  v.  Lownsdale,  Deadv,  288; 
Galvin  v.  Boutwell,  9  Blatchf.  470;  State  v.  Babcock,  4  Wash.  C.  C.  345. 

7  Donohoe  v.  Mariposa  L.  &  M.  Co.  5  Sawy.  63. 

8  Field  v.  Lownsdale,  Deady,  288. 


§   17  C  REMANDING   CAUSE.  176 

9  Bufordr.  Strother,  10  Fed.  Rep.  406;  Boyd  v.  Bradsheet,  10  Fed. 
Kep.  406. 

10  Buford  V.  Strother,  10  Fed.  Rep.  406. 

11  Dennis  v.  Alachua  Co.  3  Woods,  683. 

12  Price  V.  Sommers,  8  Ch.  L.  N.  290. 

13  Price  v.  Sommers,  8  Cli.  L.  N.  290. 

14  Osgood  jj.  Cliica^o  etc.  E.  R.  Co.  2  Cent.  L.J.  275;  2  Cent.  L.  J. 
283;  7  Cli.  L.  N.  241.    See  Parker  v.  Ovei'mau,  18  How.  141. 

15  Heath  v.  Austin,  12  Blatchf .  320. 

16  Abercrombie  v.  Dupins,  1  Cranch,  343;  Wood  v.  Wagnan,  2 
Cranch,9;  Sherman  v.  Windsor  Manuf.  Co.  11  Fed.  Rep.  852. 

17  Beede  v.  Cheeney,  5  Fed.  Rep.  388. 

18  Hervoy  v.  Illinois  M.  R.  R.  Co.  12  Ch.  L.  N.  407. 

19  Houser  v.  Clayton,  3  Woods,  273. 

20  Galvin  v.  Boutwell,  9  Blatchf.  470. 

21  Kingsbury  v.  Kingsbury,  3  Biss.  60. 

22  Buttner  v.  Miller,  1  Woods,  620. 

23  Texas  v.  Texas  &  Pac.  R.  R.  3  Woods,  30». 

24  Coal  Co.  V.  Blatchf ord,  11  Wall.  172 ;  Heath  v.  Austin,  12  Blatchf.  320 

25  Urtetique  v.  D'Arcy,  9  Peters,  692. 

26  Clark  v.  Chicago,  M.  &  St.  P.  R.  R.  Co.  11  Fed.  Rep.  355;  Sweet 
V.  Same,  11  Fed.  Rep.  a55. 

§  17  c.  For  failure  to  file  record.— Failure  to  file  a 
record  ou  or  before  the  first  day  of  the  next  term  of  the 
Federal  court  does  not  deprive  it  of  jurisdiction;!  but  if 
not  filed  in  time,  and  the  Federal  court  cannot  cure  the 
defect,  the  cause  will  be  remanded. ^  In  opposing  a 
motion  for  remanding  a  cause,  the  affidavit  by  defend- 
ant's attorney  that  a  failure  to  file  the  record  was  through 
inadvertence,  must  state  the  facts,  from  which  the  court 
may  see  that  it  was  through  inadvertence  or  accident.^ 
"Where  the  case  is  improvidently  placed  on  the  docket  of 
the  circuit  court,  with  or  without  its  order,  objection  may 
be  made  at  any  time;^  or  if  the  record  shows  on  its  face 
that  the  case  is  not  one  which  may  be  removed  under  the 
statutes.5  If  a  defect  or  omission  in  the  record  can  be 
cured  by  certiorari,  such  defect  is  no  ground  for  remand- 
ing the  cause. 6  In  case  of  non-appearance,  the  circuit 
court  may  remand.' 

1  McLean  v.  Chicago,  St.  Paul  etc.  R.  Co.  16  Blatchf.  3n9;  Jackson 
V.  Mutual  Ins.  Co.  3  Woods,  413;  Hyde  v.  Phoenix  Ins.  Co.  2  Dill.  525; 
Clippinger  v.  Missouri  Valley  L.  Ins.  Co.  8  Ch.  L.  N.  115.  See  Kidder  v. 
Featteau,  2  Fed.  Rep.  616. 


177  REIVIANDING  CAUSE.  §§  17   d-e 

2  Cobb  V.  Globe  etc.  Ins.  Co.  3  Hu?hes,  452;  Bright  v.  Milwaukee  R. 
R.  Co.  14  Blatchf.  366;  Broadnax  v.  Eisner,  13  Blatchf.  366;  McLean  v. 
St.  P.  &  C.  R.  R.  Co.  20  Alb.  L.  J.  78;  Wilcox  v.  FoUett,  10  Cb.  L.  N.  99. 

3  McLean  v.  Chicago  &  St.  P.  R.  R.  Co.  16  Blatchf.  3u9. 

4  Gate  v.  Babcock,  4  Wash.  C.  C.  344;  McMurdy  v.  Conn.  G.  L.  lus. 
Co.  9  Ch.  L.  N.  324. 

5  Easton  v.  Rucker,  1  Marsh.  J.  J.  232.  See  Brownell  v.  Gordon,  1 
McAll.  207. 

6  Dennis  v.  Alachua  Co.  3  Woods,  683;  Cook  v.  Whitney,  3  Woods, 
715. 

7  Ward  v.  Arredondo,  1  Paine,  410. 

§  17  d.  Sufficiency  of  bond.— A  Federal  court  will 
not,  on  motion  to  remand,  enter  upon  inquiry  as  to  the 
sufficiency  of  the  sureties  on  tlie  bond;i  and  the  cause 
will  not  be  remanded  on  this  ground  ;2  nor  because  it  is 
irregular  or  objectionable  in  form.'^  A  Federal  court  will 
not,  on  motion,  enter  on  the  inquiry  as  to  the  sufficiency 
of  the  sureties  on  a  bond  approved  by  the  State  court.* 
If  the  conditions  in  the  bond  omit  to  provide  for  the  pay- 
ment of  costs,  the  cause  will  be  remanded.^ 

1  Van  Allen  v.  Atchison,  C.  &  P.  R.  Co.  3  Fed.  Rep.  545. 

2  Dennis  v.  Alachua  Co.  3  Woods,  683. 

3  Hervey  v.  111.  M.  R.  Co.  12  Ch.  L.  N.  407. 

4  Van  AJlen  v.  Atchison,  C.  &  P.  R.  R.  Co.  3  Fed.  Rep.  545. 

5  Torrey  v.  Grant  Loco.  Wks.  14  Blatchf.  269;  McMurdy  v.  Conn.  G. 
L.  Ins.  Co.  9  Ch.  L.  N.  324;  Farmers'  L.  &  T.  Co.  v.  C.  P.  &  S.  R.  R.  Co. 
12  Ch.  L.  N.  65.  Contra :  Baker  v.  Peterson,  4  Dill.  562 ;  Dennis  v.  Ala- 
chua Co.  3  Woods,  683. 

§  17  e.  Application  too  late.— The  mere  failure  to 
move  to  remand  at  the  same  term  at  which  the  record  is 
filed  will  not  preclude  making  the  objection  at  the  next 
term,i  nor  is  a  neglect  till  a  full  term  has  passed  a  waiver 
of  the  riglit  to  do  so. 2  If  the  removal  is  not  applied  for 
in  time,  tlie  cause  will  be  remanded.  But  the  objection 
must  be  seasonably  made,  or  it  will  be  deemed  waived. ^ 
And  it  may  be  conclusively  waived  by  submitting  to 
the  jurisdiction  of  the  circuit  court,  by  taking  testimony, 
and  by  delay  for  an  unreasonable  time  to  object.* 
Where  the  application  is  made  too  late  the  case  will  not 
be  remanded.5 


§§  17  f-g  REMAXDrXG  CAUSE.  178 

1  Kauffman  r.  MoNutt,  3  Cent.  L.  J.  408;  Kain  v.  Texas  Pac.  R.  R. 
Co.  3  Cent.  L.  J.  12;  Carriugton  v.  Florida  R.  K.  Co.  9  BlatcM.  467. 

2  Young  V.  Andes  Ins.  Co.  1  Flippen,  599. 

3  French  v.  Hay,  22  Wall.  244. 

4  French  v.  Hav,  22  Wall.  244;  Ames  v.  Colorado  Cent.  K.  R.  Co.  9 
Ch.  L.  N.  132;  Young  v.  Andes  Ins.  Co.  3  Cent.  L.  J.  12;  Carrington  v. 
Florida  R.  R.  Co.  9  Blatchf .  467. 

5  Kerting  v.  Amer.  Oleograph  Co.  10  Fed.  Red.  17;  Pratt  r.  Al- 
bright, 9  Fed.  Rep.  634. 

§  17  f.  Effect  of  remand.— On  the  order  of  the  cir- 
cuit court  remanding  a  cause,  the  jurisdiction  of  the 
State  court,  ijjso  facto,  re-attaches,i  and  if  no  steps  are 
taken  to  reverse  the  judgment  of  the  circuit  court,  the 
State  court  may  proceed  with  the  cause,2  and  the  State 
appellate  tribunal  cannot  interfere  by  certiorari  to  oust 
the  jurisdiction. 3  Where  the  Federal  court  declines  to 
take  jurisdiction  and  remand  the  cause,  it  does  not  oper- 
ate as  a  discontinuance,  hut  it  is  deemed  to  have  been 
pending  in  the  State  court.-*  If  the  circuit  court  does  not 
obtain  jurisdiction  it  cannot,  on  remanding  the  cause, 
give  a  judgment  for  costs,  and  order  execution  thereon.^ 

1  Thatcher  r.  McWilliams,  47  Ga.  306;  50  Ala.  464;  Germania  F. 
Ins.  Co.  V.  Francis,  52  Miss.  457. 

2  Thompson  v.  Kendricks,  5  Ilayt.  115. 

3  Jenkins  v.  Switzer,  33  Leg.  Int.  232. 

4  Germania  F.  Ins.  Co.  i'.  Francis,  52  Miss.  457. 

5  Mayor  v.  Cooper,  6  Wall.  247. 

§  17  g.  Error  and  appeal.— The  action  of  the  cir- 
cuit court  in  remanding  or  refusing  to  remand  is  re- 
viewable on  error  or  appeal  in  the  supreme  court  of  the 
United  States.!  "When  a  Federal  court  orders  a  cause 
remanded,  the  State  supreme  court  will  not  issue  a 
mandamus  or  other  process  to  restrain  the  State  court 
from  proceeding  with  the  cause  until  the  revisory  power 
of  the  United  States  supreme  court  has  been  invoked. ^ 
The  appeal  is  intended  as  a  substitute  for  mandamus, 
the  former  remedy .3  An  order  of  the  circuit  court  re- 
manding the  cause  because  not  filed  in  time  is  review- 
able in    the  supreme  court,  regardless  of    the  amount 


179  PROCEEDLNGS  AFTER  REMOVAL.     §§  18-18  a 

involved.^  A  writ  of  error  to  the  circuit  court,  issued 
out  of  the  supreme  court  to  review  the  action  of  the 
circuit  court  on  the  order  to  remand,  will  not  operate  as 
a  stay  of  proceedings;  it  operates  as  a  stay  of  execution. 5 
On  error  the  supreme  court  will  direct  it  to  be  remand- 
ed; ^  and  if  the  circuit  court  entertains  jurisdiction  where 
it  has  none,  the  supreme  court  will  reverse  its  judgment, 
with  direction  to  remand  the  cause.'^  Where  the  suit 
was  removed,  and  the  papers  were  afterwards  destroyed 
by  fire,  and  the  parties  stipulated  that  the  transfer  was 
made  in  accordance  with  the  statutes,  the  supreme  court 
will  presume  that  requisite  citizenship  was  shown.s 

1  Ins.  Co.  V.  Dunn,  19  Wall.  223;  Gordon  v.  Longest,  16  Peters,  97; 
Green  t'.  Custard,  23  How.  484;  Fasnacht  v.  Frank,  23  Wall.  416; 
Gaines  v.  Fuentes,  92  U.  S.  10;  State  v.  Johnson,  29  La.  An.  399;  Ayers 
V.  Chicago,  101  U.  S.  184;  Germania  F.  Ins.  Co.  v.  Francis.  .02  Miss.  457; 
Atlas  Ills.  Co.  V.  BjTus,  45  Ind.  133;  liailroad  Co.  v.  Mississippi,  102  U. 
S.  135;  Babbitt  V.  Clark,  2  Morr.  Trans.  606;  Hoadleyi;.  San  Francisco, 
94  U.  S.  4;  Railroad  Co.  v.  Wiswall,  23  Wall.  507;  Aj^ers  v.  Chicago,  101 
U.  S.  184. 

2  Ex  parte  State  Ins.  Co.  of  Alabama,  5  Ala.  464. 

3  Babbitt  v.  Clark,  2  Morr.  Trans.  606. 

4  Babbitt  v.  Clark,  2  Morr.  Trans.  606. 

5  National  Union  Bk.  of  Dover  v.  Dodge,  11  Fed.  Hep.  641;  Suy- 
dam  V.  Adm'rs  of  Hoyt,  1  Dutch.  230. 

6  Gibson  v.  Johnson,  1  Peters,  44;  Pollard  v.  Dwight,  4  Cranch,  421, 

7  Knappen  v.  Troy  &  B.  Pv.  Pv.  Co.  20  Wall.  117 

8  Railroad  Co.  r.  Ramsey,  22  Wall.  322. 

§  18.  Proceedings.— That  the  circuit  court  of  the 
United  States  shall,  in  all  suits  removed  under  the  provisions 
of  this  act,  proceed  therein  as  if  the  suit  had  been  orirjinally 
commenced  in  said  circuit  court,  and  the  same  proceedings 
had  been  taken  in  such  suit  in  said  circuit  court  as  shall  have 
been  had  therein  in  said  State  court  prior  to  its  removal. 

Act  of  March  3, 1875,  §  6. 

§  18  a.  Jurisdiction.— To  give  the  United  States  courts 
jurisdiction  on  the  ground  of  citizenship,  the  controversy 
must  be  wholly  between  citizens  of  different  States;  i  and 
unless  the  circuit  court  can  take  jurisdiction  of  the  whole 
cause,  it  cannot  be  removed.^    Mere  temporary  residence 


§  18  a  PROCEEDIXGS  AFTER  REMOVAL.  180 

will  not  confer  citizenship. ^  It  will  not  be  presumed  that 
a  party  was  a  citizen  at  the  institution  of  the  suit  merely 
because  he  was  such  at  the  time  of  the  transaction  out  of 
which  it  grew.-i  If  the  order  of  bail  obtained  on  the  oath 
of  plaintiff  states  that  defendant  is  not  a  citizen  of  the 
State,  there  is  no  need  of  any  further  proof  of  that  fact.5 
The  decision  of  the  State  court  is  not  conclusive  as  to  the 
right  of  removal.6  The  circuit  court  is  not  precluded 
thereby  from  determining  for  itself  whether  the  removal 
was  made  in  time."  Whether  the  cause  has  been  removed 
may  be  decided  by  either  court,  but  in  case  of  conflict  the 
decision  of  the  Federal  court  will  prevail.^  The  jurisdic- 
tion of  the  State  court  is  not  dislodged  except  by  full 
compliance  with  the  requirements  of  the  statute. ^  The 
statute  contemplates  such  cases  only  as  are  liable  to  re- 
moval.i"  So  if  a  partj^  is  not  strictly  entitled  to  remove, 
the  State  court  is  bound  to  maintain  its  jurisdiction.!! 
For  although  a  suit  might  haA'e  been  brought  in  the  cir- 
cuit court,  it  cannot  be  removed  unless  provision  is  made 
for  its  removal  by  statute. i^  AVhere  there  is  a  Federal 
question  involved  in  the  suit,  the  circuit  court  has  juris- 
diction without  regard  to  the  citizenship  of  the  parties.i^ 
The  questions  involved  need  not  all  be  of  a  Federal  char- 
acter; if  a  single  one  exists  it  is  sufficient.!'*  A  controversy 
between  a  maker  of  certain  notes  secured  by  trust  deed 
and  a  national  bank  attempting  to  enforce  such  deed,  is  a 
Federal  question. is  The  dissolution  of  an  injunction  in- 
volves no  Federal  question ;  i6  nor  a  suit  to  recover  State 
taxes. 1'  So  a  suit  to  declare  the  right  of  a  candidate 
elected  under  a  State  law  involves  no  Federal  question.i^ 
The  question  whether  the  title  of  the  true  owner  of  lands 
is  extinguished  by  adverse  possession  is  not  a  Federal 
question.!^  Where  it  appears  at  the  trial  that  there  is  no 
question  involved  in  the  case  which  it  is  competent  for 
the  court  to  decide,  the  case  will  be  dismissed.20 

1  Walsh  V.  Memphis  C,  &  N.  W.  E.  R.  Co.  6  Fed.  Rep.  797. 

2  State  V.  Babcock,  4  Wash.  C.  C.  345;  Beardsley  v.  Torrey,  1  Wash. 
C.  C.  286:  Smith  v.  Kines,  2  Sum.  338. 


181  PROCEEDINGS  AFTEK  REMOVAL  §   18  b 

3  Prentiss  v.  Barton,  1  Brock.  3S9. 

4  Mining  &  Manuf.  Co.  r.  Bradley,  4  Morr.  Trans.  384. 

5  Brown  v.  Crippen,  4  Hen.  &  M.  173. 

6  Hunter  v.  Royal  Canadian  Ins.  Co.  3  Hughes,  234;  Cobb  v.  Globe 
Z\Iut.  L.  Ins.  Co.  3  Hughes,  452. 

7  Traders*  B'k  v.  Tallmadge,  9  Fed.  Rep.  363. 

8  National  Union  B'k  v.  Dodge,  11  The  Reporter,  641. 

9  Burdick  v.  Hale,  7  Biss.  96. 

10  .Smith  V.  Rines,  2  Sum.  338. 

11  Gaughran  v.  N.  "W.  F.  Ins.  Co.  3  Biss.  485;  Kingsbury  r.  Kings- 
bury, 3  Biss.  500;  State  v.  C.  &  A.  R.  R.  Co.  OBiss.  107;  Yuleer.  Vose,!:4 
U.  S.539;  Robinson  v.  Potter,  43  N.  H.  188;  Short  v.  "Wilson,  1  Bush, 
350;  Amory  I'.  Aniory,  96  U.  S.  186;  Cooley  v.  Lawrence,  5  Duer,  605; 
Brian  v.  Ponder,  23  Ga.  480;  Redmond  v.  Ilussell,  12  Johns.  153;  Fish  v. 
Fish,  4  Martin  N.  S.  676;  Darst  v.  Bates,  51  111.  439. 

12  Dennistoun  v.  X.  Y.  &  N.  H.  R.  R.  Co.  2  Abb.  Pr.  415. 

13  Crescent  City  L.  S.  Co.  v.  Butchers'  Union  Co.  12  Fed.  Kep.  225. 

14  Cohens  v.  Virginia,  6  Wheat.  379. 

15  Swope  V.  Lefflngwell,  3  Morr.  Trans.  602. 

16  Fashnacht  r. Frank,  23  Wall  416. 

17  Berger  v.  Douglas  Co.  5  Fed.  Rep.  23. 

18  Dubuelet  r.  State,  2  Morr.  Trans.  559. 

19  Poppe  V.  Langford,  3  Morr.  Trans.  762. 

20  Blanchard  v.  Sprague,  1  Cliff.  288. 

§  18  b.  Procedure.  — The  procedure  in  the  circuit 
court  is  as  of  original  cognizance,^  and  as  in  all  cases 
originally  brought  therein.^  The  jurisdiction  of  the  cir- 
cuit court  is  in  no  sense  appellate,-^  and  questions  passed 
upon  in  the  State  court  cannot  be  reviewed.^  It  will  not 
review  the  orders  and  rulings  made  by  the  State  court.^ 
If  the  State  court  refused  to  set  aside  a  summons  when 
tlie  party  is  exempt  from  service,  the  decision  on  a  plea 
in  abatement  cannot  be  reviewed  or  reversed. 6  The  res 
is  transferred  with  the  case;"^  but  funds  in  the  hands  of  a 
sheriff  are  no  part  of  the  subject-matter,  and  the  court 
lias  no  control  over  them;  §  but  it  may  require,  after  re- 
moval, the  receiver  appointed  by  the  State  court  to 
account  for  funds  in  his  hands,  and  make  him  chargeable 
with  interest.9  Property  in  custody  in  a  replevin  suit 
should  be  sold,  and  the  proceeds  brought  into  coart.io 
The  suit  brings  along  with  it  as  an  incident  all  the  costs 
wliich  accrued  or  attached  under  the  State  law.  The  acts 
Desty  Removal.— IC. 


§  18  C  TRIAL.  182 

of  Congress  apply  only  to  subsequent  costs. u  If  the 
amount  recovered  is  less  tban  Jive  hundred  dollars,  the 
plaintiff  cannot  recover  costs.i-^  If  the  petitioner  has 
complied  with  the  requirements  of  the  act,  he  may,  by 
answer,  raise  the  question  of  loss  of  jurisdiction  by  reason 
of  the  proceedings  for  removal ;  i-3  and  it  is  not  necessary 
for  him  to  j)lead  the  proceedings  to  the  jurisdiction.i'^  So 
u  non-resident  filing  a  jietition  and  bond  for  removal  is, 
not  a  waiver  of  his  right  to  object  to  the  service  on  him 
while  attending  as  a  witness  in  another  State.i-s 

1  "Wertliein  v.  Continental  R.  &  T.  Co.  12  Fed.  Rep.  690;  Karns  v. 
Atlantic  &  O.  R.  Co.  10  Fed.  Kep.  309. 

2  Bills  V.  X.  O.  St.  L.  etc.  R.  R.  Co.  13  Blatchf.  227.  See  Howe  S. 
M.  Co.  V.  Edwards,  15  Blatclif.  403;  Kelly  v.  Virginia  P.  Ins.  Co.  3 
Hughes,  449. 

3  Bushnell  v.  Kennedy,  9  Wall.  387. 

4  Brooks  V.  Farwell,  4  Fed.  Rep.  166. 

5  Smith  V.  Schwed,  11  The  Reporter,  730. 

6  Brooks  v.  Farwell,  4  Fed.  Rep.  166. 

7  Osgood  V.  Chicago  etc.  R.  R.  Co.  7  Ch.  L.  N.  241;  2  Cent.  L.  J.  275, 
283. 

8  Smith  V.  Schwed,  9  Fed.  Rep.  483. 

9  Hinckley  v.  Railroad  Co.  100  U.  S   153. 

10  Dennistoim  v.  Draper,  5  Blatchf.  336. 

11  Warren  v.  Ives,  1  Flippen,  356;  Scupps  v.  Campbell,  3  Cent.  L.  J. 
521.  Contra:  Coggill  v.  Lawrence,  2  Blatchf.  304. 

12  Brooks  v.  Phoenix  Mat.  L.  Ins.  Co.  16  Blatchf.  182. 

13  Shaft  V.  Peoenis  M.  L.  Ins.  Co.  67  N.  C.  544;  DeCamp  v.  N.  J.  M. 
L.  Ins.  Co.  2  Sweeny,  481. 

14  Kanouse  v.  Martin,  15  How.  198. 

15  Atchison  V.  Morris,  11  Fed.  Rep.  582. 

§  18  c.  Authority  of  court.— Proceedings  had  in 
the  State  court  are  not  vacated  by  the  removal. i  The 
removal  takes  the  case  in  the  condition  in  which  it  was 
when  the  State  court  was  deprived  of  its  jurisdiction;^ 
and  where  an  action  commenced  in  a  State  court  in 
which  the  distinction  between  legal  and  equitable  pro- 
cedure is  done  away  with  is  removed,  it  is  removed  to 
that  side  of  the  court  where  appropriate  relief  can  be 
obtained.3  And  for  the  purposes  of  jurisdiction  the  cir- 
cuit court  has  power  to  ascertain  the  real  matter  in  dis- 


183  TRIAL.  §   19 

pute,  and  arrange  the  parties  on  one  side  or  the  other.* 
The  circuit  court  has  no  jurisdiction  to  enjoin  the  pro- 
ceedings of  a  State  court.s  Xor  can  it  stay  proceedings 
in  the  State  court;  6  but  it  has  jurisdiction  to  grant  a 
provisional  remedy  before  the  first  day  of  the  next  term 
on  which  a  party  must  enter  a  copy  of  his  record;"  and 
it  may  protect  a  party  by  injunction  against  a  judgment 
in  tlie  State  court,  rendered  after  a  proper  application  for 
removaljS  but  ex  ^jarte  orders  to  restrain  proceedings 
Avill  be  issued  only  where  there  is  danger  from  irrepar- 
able injury  from  delay.^  The  Federal  courts  may  protect 
a  party  by  injunction  after  a  proper  application  to  re- 
move has  been  made.i''  So  the  right  of  intervenors  to  an 
injunction  follows  as  a  matter  of  course. n  An  applica- 
tion to  dissolve  an  injunction  cannot  be  heard  before  the 
return  day,  when  it  involves  the  consideration  of  the 
case  as  an  entirety,  and  the  dissolution  could  not  be 
granted  without  changing  the  status  of  the  parties. i^ 

1  Harrison  Wire  Co.  v.  "Wlieeler,  11  Fed.  Rep.  206;  Kern  v.  Huide- 
koper,  2  Morr.  Trans.  617;  Biggs  v.  Wolcott,  4  Cranch,  379. 

2  Bell  V.  Dix,  49  N.  Y.  232;  Fisk  v.  Union  Pac.  R.  R.  Co.  6  Blatelaf. 
362. 

3  Commercial  &  Sav.  Bk.  v.  Corbett,  5  Sawy.  172;  following  Malio- 
ney  Mlu.  Co.  v.  Bennett,  4  rsawy.  289. 

4  French  v.  Hay,  22  Wall.  250. 

5  People  V.  Detroit  Sup.  Ct.  Judges,  41  Mich.  31. 

6  French  v.  Hay,  22  Wall.  250. 

7  In  re  Bamesville  &  Moorhead  R.  Co.  4  Fed.  Rep.  10. 

8  X.  O.  City  R.  R.  Co.  v.  Crescent  City  R.  R.  Co.  5  Fed.  Rep.  160. 

9  Duncan  v.  Gegan,  101  U.  S.  810. 

10  Smith  V.  Schwed,  11  The  Reporter,  730;  Duncan  v.  Green,  101  U. 
S.  slO. 

11  Benedict  v.  Williams,  10  Fed.  Rep.  208. 

i2    Pacific  R.  R.  Co.  V.  Ketchum,  101  U.  S.  29i5. 

§  19.  Issues  of  fact  -when  to  be  tried  by  jury.— 

The  trial  of  issues  of  fact  in  the  circuit  court  shall  be  hij  jury, 
except  in  cases  of  eeiuity  and  of  admiralty  and  maritime 
j  urisdiction,  and  except  as  othenoise  provided  in  proceedings 
in  bankruptcy,  and  by  the  next  section. 
Rev.  Stats.  §  648. 


§§  19  a-20  a  trial.  184 

§  19  a.  Trial  of  issues  of  fact.— The  trial  of  issues  of 
fact  shall  be  by  jury,  except  in  cases  of  equity  or  admir- 
alty and  maritime  jurisdiction.!  A  circuit  court  cannot 
order  a  peremptory  nonsuit  against  the  will  of  the  plaint- 
iff.- Nor  can  it  refer  the  case  to  a  referee  without  consent 
of  both  parties.3 

1  Town  of  Lyons  v.  Lvons  Nat.  Bank,  8  Fed.  Rep.  371.  See  Howe 
S.  M.  Co.  V.  Edwards,  15  Blatchf.  4U5. 

2  Castle  r.  BuUard,  23  How.  172;  Elmore  v.  Grymes,  1  Peters,  469; 
D'WolftJ.  Raband,  1  Peters,  476;  Crane  r.  Morris,  6  Peters,  598;  Silsby 
V.  Foote,  1  BlatcM.  445. 

3  Howe  S.  M.  Co.  v.  Edwards,  15  Blatchf.  405;  U.  S.  v.  Eatlibone,  2 
Paine,  578. 

§  20.  Issues  of  fact  tried  by  the  court.— Issues  of 

fact  in  civil  cases  in  any  circuit  court  may  he  tried  and  de- 
termined by  the  court,  v)ithoiit  the  intervention  of  a  jury, 
v^henever  the  parties,  or  their  attorneys  of  record,  file  loith 
the  clerk  a  stipulation  in  loriting  waivinr/  a  jury.  The  find- 
ing of  the  court  upon  the  facts,  which  may  be  either  general 
or  special,  shall  have  the  same  effect  as  the  verdict  of  a  jury. 
Rev.  Stats.  ^649;  13  U.  S.  Stats.  501. 

XoTE. — This  section  is  not  repealed  by  the  Act  of  March 
3,  1875,  §3.  Phillips  v.  Moore,  100  U.  S.  208.  Question 
discussed  in  Town  of  Lyons  v.  Lyons  Nat.  Bank,  8  Fed. 
Rep.  371;  and  §  700  of  the  Revised  Statutes  was  enacted  to 
carry  out  its  provisions.  Town  of  Lyons  v.  Lyons  Nat. 
Bank,  8  Fed.  Rep.  371.  This  section  does  not  conflict  with 
§  914,  Revised  Statutes,  but  leaves  it  in  full  force.  "Wear 
V.  Mayer,  6  Fed.  Rep.  G60.  This  section  and  §  700,  Revised 
Statutes,  relate  only  to  the  circuit  court.  Howard  v. 
Crompton,  li  Blatchf.  333. 

§  20  a.  "Waiver  of  jury  trial.  — There  must  be  an 
agreement  to  waive  a  jury  trial  to  enable  the  court  to  try 
an  issue  of  fact;i  but  parties  may  waive  without  a 
written  stipulation,  yet  they  must  tile  their  stipulation  if 
they  desire  to  secure  the  right  of  a  review  in  the  supreme 
court  on  any  question  of  law  arising  in  the  trial.-    Then 


185  Di^^isiON  OF  opixiox.  §§  20  b-21 

tlie  stipulation  must  be  in  writing,  and  be  liled  with  the 
clerk.3  The  court  has  no  power  to  order  a  reference  and 
deprive  defendant  of  his  riglit.-* 

1  Morgan  v.  Gav,  19  Wall.  81.  See  Robinson  v.  Mut.  Ben.  L.  Ins. 
Co.  16  Blatclif.  201. ' 

2  Kearny's  Case,  12  Wall.  275.  See  Town  of  Lyons  v.  Lyons  Nat. 
Bank,  8  Fed.  Kep.371. 

3  Kearny's  Case,  12  Wall.  275. 

4  Howe  S.  M.  Co.  v.  Edwards,  15  Blatclif.  405. 

§  20  b.  Findings  by  the  court.— The  findings  may- 
be general  or  special ;  i  and  whether  general  or  special, 
they  have  the  same  effect  as  the  verdict  of  a  jury;'^  and 
there  must  be  a  finding,  either  general  or  special,  to  au- 
thorize a  judgment;  3  but  if  the  court  omits  to  file  a  find- 
ing it  may  do  so  at  a  subsequent  term.'*  If  a  general 
finding  includes  mixed  questions  of  law  and  fact,  it  con- 
cludes both,  except  so  far  as  they  may  be  saved  by 
exception.5  All  that  is  essential  in  a  special  finding  is 
that  it  shall  find  the  ultimate  facts.6  It  is  not  a  mere 
report  of  the  evidence,  but  a  statement  of  the  ultimate 
facts  on  which  the  rights  of  the  parties  must  be  deter- 
mined.'^ 

1  Norris  v.  Jackson,  9  Wall.  125;  Marye  v.  Strouse,  5  Fed.  Rep.  497. 
See  Insurance  Asso.  v.  Boon,  ^b  U.  S.  117. 

2  U.  S.  V.  Dawson,  101  U.  S.  569;  Xorrls  v.  Jackson,  9  Wall.  125. 

3  Insurance  Asso.  v.  Boon,  95  U.  S.  117. 

4  Insurance  Asso.  r.  Boon,  95  U.  S.  117. 

5  Norris  v.  Jackson,  9  Wall.  125. 

6  Mining  Co.  v.  Taylor,  100  U.  S.  37. 

7  Norris  v.  Jackson,  9  Wall.  125. 

§  21.  Division  of  opinion  in  civil  causes— de- 
cision by  presiding  judge.— F/ieneter,  in  any  civil  suit 
or  proceedinf/  in  a  circuit  court  held  hy  a  circuit  justice  and 
a  circuit  judge  or  a  district  judrje,  or  hy  a  circuit  judge  and 
a  district  judge,  there  occurs  any  difference  of  opinion  be- 
tween the  judges  as  to  any  matter  or  thing  to  be  decided, 
ruled,  or  ordered  hy  the  court,  the  opinion  of  the  presiding 
justice  or  judge  shaJl  prevail,  and  be  considered  the  opinion 
of  the  court  for  the  time  being. 

Rev.  Stats.  §  650;  17  U.  S.  Stats.  196. 


§§  22-22  a  Dn-isioN  of  opln'io>\  186 

Note.— No  civil  suit  can  be  taken  to  the  supreme  court 
except  upon  final  judgment  and  on  appeal  or  writ  of  error. 
Bobbins  v.  Fireman's  F.  Ins.  Co.  16  Blatchf.  232.  The 
district  judge  cannot  sit  in  the  circuit  court  in  a  case 
brought  there  by  writ  of  error  from  the  district  court,  and 
sucli  cause  cannot  be  brought  to  the  supreme  court  on 
certificate  of  division.  U.  S.  v.  Lancaster,  5  Wheat.  434. 
Upon  the  hearing  in  the  circuit  court  of  an  appeal  from  a 
judgment  of  the  district  court,  the  district  judge  who  ren- 
dered the  decision  appealed  from,  although  he  may,  for 
tlie  information  of  the  court,  assign  his  reasons  for  that 
decision,  is  prohibited  from  voting  or  taking  part  in  the 
judgment  of  the  circuit  court.  United  States  t".  Emholt, 
11  Fed.  Rep.  190,  note.  On  appeal  to  this  court,  if  it  finds 
that  the  judgment  as  rendered  is  correct,  it  may  simply 
affirm  it;  but  if  it  is  reversed,  all  questions  certified  which 
are  considered  in  the  final  determination  of  the  case 
should  be  answered.     United  States  v.  Reese,  92  U.  S.  214. 

§  22.  Division  of  opinion  in  criminal  causes- 
certificate. —  Whenever  any  question  occurs  on  the  trial  or 
hearing  of  any  criminal  proceeding  before  a  circuit  court 
upon  which  the  judges  are  divided  in  opinion,  the  point  upon 
u-hich  they  disagree  shall,  during  the  same  term,  upon  the 
request  of  either  party ,  or  of  their  counsel,  he  stated  under 
the  direction  of  the  judges,  and  certified,  under  the  seal  of 
the  court,  to  the  supreme  court  at  their  next  session;  but 
7iothing  herein  contained  shall  prevent  the  cause  from  pro- 
ceeding, if,  in  the  opinion  of  the  court,  further  proceedings 
can  be  had  loithout  prejudice  to  the  merits.  Imprisonment 
shall  not  be  allowed  nor  x>unishment  inflicted  in  any  case 
where  the  judges  of  such  court  are  divided  in  opinion  upon 
the  question  touching  the  said  imprisonment  or  punishment. 

Rev.  stats.  §651;  2  U.  S.  Stats.  159;  17  U.  S.  Stats.  196. 

§  22  a.  Criminal  causes.— A  certificate  that  the 
judges  differ  in  oiiinion  is  not  sufficient  unless  it  states 
the  points  on  which  they  differ.^      The  supreme  court  can- 


187  Divisiox  OF  opixiox.  §§  23-23  a 

not  take  cognizance  of  a  division  of  opinion  on  a  motion 
to  quash  an  indictment:-  nor  determine  on  a  certificate 
of  division  whether  or  not  a  new  trial  should  be  granted. ^ 
So  where  the  jury  found  the  value  of  the  property,  and 
the  judges,  being  opposed  in  opinion,  certified  the  case,  the 
laAV  creates  the  offense  and  defines  the  i^uuishment,  and 
no  value  need  be  found  by  the  jury.-* 

1  United  States  v.  Bailev,  9  Peters,  267;  United  States  v.  Briggs,  5 
How.  208;  United  States  v.  Ross,  3  Wheat.  600. 

2  United  States  v.  Rosenburgli,  7  Wall.  580. 

3  United  States  v.  Daniel,  6  Wheat.  542. 

4  United  States  v.  Tj'ler,  7  Cranch,  285. 

§  23.  Division  of  opinion  in  civil  causes— certifi- 
cate.—  When  a  final  judf/ment  or  decree  is  entered  in  any 
civil  suit  or  proceeding  before  any  circuit  court  held  by  a 
circuit  justice  and  a  circuit  judge  or  a  district  judge,  or  by 
a  circuit  judge  and.  a  district  judge,  in  the  trial  or  hearing 
lohereof  any  question  has  occurred  upon  which  the  opinions 
of  the  judges  v:ere  opposed,  the  point  -upon  lohich  they  so 
disagreed  shall,  during  the  same  term,  be  stated  under  the 
direction  of  the  judges,  and  certified,  and  such  certificate 
shall  be  entered  of  record. 

Rev.  Stats.  §652;  2  U.  S.  Stats.  159;  17  U.  S.  Stats.  19(j. 

§  23  a.  Civil  suits.— A  certificate  of  division  will  not 
be  granted  in  a  civil  suit  where  the  matter  in  dispute  does 
not  exceed  five  thousand  dollars.^  Although  the  motion 
under  argument  was  addressed  to  the  discretion  of  the 
court,  yet  if  the  questions  involved  the  right  of  the  mat- 
ter they  may  be  certified;-^  but  where  the  division  of 
oiiinion  arises  from  some  proceeding  subsequent  to  the 
decision,  it  cannot  be  certified.^  The  time,  the  process, 
and  the  manner  are  subject  to  the  absolute  control  of 
Congress.4  The  questions  which  may  be  certified  are  those 
which  arise  on  the  trial,  and  such  as  may  be  presented  on 
the  final  hearing  or  plea  to  the  jurisdiction.^  The  ques- 
tion certified  must  involve  a  distinct  legal  point,  and  suf- 
ficient facts  must  be  set  forth  to  show  its  bearing  on  the 


§  23  a  Divisicx  OF  opixiox.  188 

rights  of  the  parties.^  A  division  on  a  motion  within  the 
discretion  of  the  court  does  not  present  a  point  which  can 
be  certitied ;  ■^  so  a  question  whether  a  plaintiff  in  eject- 
ment may  enlarge  the  term  of  the  demise  cannot  be  certi- 
iied;8  nor  a  question  in  any  equity  case  relating  to  prac- 
tice;^ nor  has  this  court  jurisdiction  on  the  question  of 
costs. 10  The  question  certified  must  be  a  question  of  law 
and  not  of  fact.i^  A  certificate  that  the  judges  differ  in 
opinion  is  not  sufficient  unless  it  states  the  points  on 
which  they  differ. i^  There  must  be  a  distinct  statement 
of  what  the  question  is;i3  ^  point  of  law,  in  precise  form, 
upon  a  part  of  the  case,  settled  and  stated;!^  a  single 
material  point  in  the  progress  of  the  cause, i^  and  not  on 
the  whole  facts  of  the  case;iG  where  the  point  of  differ- 
ence is  to  be  ascertained  from  the  whole  record,  jurisdic- 
tion will  be  refused;!"  and  the  cause  remauded.is  The 
power  of  review  is  strictly  confined  to  the  questions  cer- 
tified.19  Where  several  questions  are  certified,  one  being 
of  jurisdiction,  the  question  of  jurisdiction  must  be  first 
determined.-'^  AVhere  the  supreme  court  is  equally  di- 
vided, the  case  will  be  remitted  to  enable  the  court  below 
to  take  such  action  as  it  may  be  advised.-J- 

1  Robbins  r.  Fireman's  F.  Ins.  Co.  16  Blatclif,  232. 

2  U.  S.  r.  Chicago,  7  How.  185.  See  instances:  Hepburn  v.  EUzey 
2  Crancb.  445;  Grant  v.  Raymond,  6  Peters,  220;  Lutber  v.  Borden,  7 
How.  1;  Waymaui'.  Soutbard,  10  Wbeat.  1. 

3  Devereaux  v.  Marr,  12  Wbeat.  212. 

4  Ex  parte  Crane,  5  Peters,  20o. 

5  Davis  V.  Braden,  10  Peters,  2S6. 

6  Havemeyertj.  Iowa  Co.  3  "Wall.  234. 

7  Davis  V.  Braden,  10  Peters,  288. 

8  Smitb  V.  Yaugban,  10  Peters,  3G6. 

9  Packer  v.  Nixon,  10  Peters,  410. 

10  Bank  of  U.  S.  v.  Green,  G  Peters,  26. 

U  Wilson  V.  Barnum,  8  How.  253;  Dennistouu  v.  Stewart,  18  How. 

565;  U.  S.  V.  City  Bank.  19  How.  355;  Brobst  v.  Brobst,  4  Wall.  2. 

12  Wolf  V.  Usber,  3  Peters,  269;  Sadler  v.  Hoover,  7  How.  646. 

13  Sadler  v.  Hoover,  7  How.  646. 

14  Daniel  v.  Railroad  Co.  3  Wall.  250. 

15  White  V.  Turk,  12  Peters,  238. 

16  Adams  v.  Jones,  12  Peters,  207. 


189  coKPOKATiONS.  §§  24-24  a 

17  Wolf  V.  Usher,  3  Peters,  269;  Sauuders  r.  Gould,  4  Peters,  392; 
Nesmitli  v.  Sheldou,  6  How.  41. 

18  "Webster  v.  Cooper,  10  How.  54. 

19  Ward  V.  Cliamberlaiii,  2  Black,  430 

20  Sillimau  v.  Hudson  Riv.  K.  Co.  1  Black,  582. 

21  Hannauer  v.  Woodruff,  10  Wall.  482. 

§  24.  Removal  of  suits  against  corporations  or- 
ganized under  a  law  of  United  Sta.tes.—An>j  sidt 
commenced  in  any  court  other  than  a  circuit  or  district  court 
of  the  United  States,  ar/ainst  any  corporation  other  than  a 
hanking  corporation,  orrjanized  under  a  law  of  the  United 
States,  or  against  any  tnemljer  thereof  as  such  member  for 
any  alleged  liability  of  such  corporation,  or  of  such  member 
as  a  member  thereof,  may  be  removed  for  trial  in  the  circuit 
court  for  the  district  ichere  such  suit  is  pending,  upon  the 
petition  of  such  defendant,  verified  by  oath,  stating  that  such 
defendant  has  a  defense  arising  under  or  by  virtue  of  the 
Constitution,  or  of  any  treaty  or  laiv  of  the  United  States. 
Such  removal,  in  all  other  respects,  shall  be  governed  by  the 
ptrovisions  of  the  preceding  section. 

Kev.  Stats.  §640;  14  U.  S.  Stats.  306;  15  U.  S.  Stats.  227. 

Note. — This  section  is  not  repealed  by  the  Act  of  March 
3,  1875.  Kain  v.  Texas  Pac.  R.  R.  Co.  3  Cent.  L.  J.  12; 
Ely  r.  Northern  Pac.  R.  R.  Co.  36  Leg.  Int.  164. 

§  24  a.  Corporations  created  by  congressional 
legislation.— This  section  applies  only  to  a  case  in  which 
the  corporation  or  a  member  thereof  was  sole  defendant. i 
It  does  not  apply  to  corporations  created  by  foreign  gov- 
ernments or  by  the  several  States,'^  nor  to  national 
banks; 3  it  expressly  excludes  national  banks,  but  not  so 
as  to  deprive  them  of  the  right  of  removal  if  their  cause 
is  within  any  other  act  relating  to  removals.^  For  juris- 
dictional imrposes  they  are  deemed  citizens  of  the  State 
in  which  they  are  located  and  have  their  place  of  busi- 
ness; 5  but  neither  under  the  Revised  Statutes  nor  under 
the  national  banking  act  have  receivers  of  national  banks, 
as  such,  the  right  to  remove  causes.^    If  suit  is  brought 


§  24  a  CORPORATIONS.  190 

against  a  banking  company,  it  has  no  right  to  remove." 
Under  this  act  a  corporation  seeking  a  removal  must 
show  that  it  was  organized  under  the  laws  of  the  United 
States,  or  that  there  is  a  defense  arising  under  the  Fed- 
eral Constitution,  or  under  some  law  or  treaty  of  the 
United  States.^  The  fact  that  it  was  one  organized 
under  the  laws  of  the  United  States  is  not  alone  suffi- 
cient.'-^ Proceedings  for  removal  may  be  instituted  by 
the  corporation  or  by  any  member  thereof. i**  Where  a 
member  petitions,  he  must  be  one  who  was  a  member 
when  suit  was  commenced;  n  and  all  must  join  in  the  peti- 
tion; i^  but  each,  or  as  many  as  see  fit,  may  petition  without 
waiting  for  the  others. ^3  The  petition  must  state  that  the 
cori^oration  or  member  thereof  has  a  defense  arising 
under  and  by  virtue  of  the  Constitution,  a  treaty,  or  a  law 
of  the  United  States,  but  the  matter  thereof  need  not  be 
stated ;  i^  and  if  it  says  the  defense  arises  under  an  act  of 
Congress,  it  is  sufficient.i-5  The  particular  part  of  the 
Constitution  or  of  the  act  of  Congress  need  not  be  set 
up.iG  A  suit  under  this  section  may  be  removed  at  any 
time  before  trial  or  final  hearing.i^  The  word  "suit" 
embraces  a  suit  brought  by  a  State  as  well  as  by  an 
individual.is  If  the  corporation  is  created  by  the  laws  of 
the  State  it  cannot  remove  the  cause.i-'  There  is  nothing 
to  prevent  an  insolvent  corjioration  whose  property  is  in 
the  hands  of  a  receiver  to  appear  in  an  attachment  suit, 
and  remove  the  cause.-'^  The  existence  of  a  suit  by  stock- 
holders does  not  affect  the  right  to  remove.-i 

1  Hazard  r.  Dnrand,  0  R.  I.  60n ;  beld  otherwise :  Fisk  v.  Union  Pac. 
K.  K.  Co.  6  Blatchf.  362;  S.  C.  8  Elatclif.  299. 

2  Jones  V.  Oceanic  St.  Nav.  Co.  11  Blatchf.  406. 

3  Jones  V.  Oceanic  St.  Nav.  Co.  11  Blatchf.  406. 

4  Chatham  Nat.  Bank  v.  Merchants'  Nat.  Bank  of  West  Va.  1  Hun, 
TO.';  Ludlow  r.Kldd,  3  Ohio,  48. 

5  Chatham  Nat.  Bank  ?•.  Merchants'  Nat.  Bank  of  West  Va.  1  Hun, 
702;  Cooker.  State  Nat.  Bank,  52  N.  Y.  96;  Davis  r.  Cook,9Nev.  134; 
Manuf.  Nat.  Baa'c  r.  Baack,  2  Abb.  TJ.  S.  232;  S.  G.  8  Blatchf.  137.  See 
Ludlow  V.  Kidd,  3  Ohio,  48. 

6  Bird's  Ex'rs  v.  Cockrem,  2  Woods.  32. 

7  Pettilon  v.  Noble,  7  Biss.  449. 


191  CIVIL   RIGHTS.  §   2d 

8  Northern  Line  P.  Co.  v.  Binninger,  70  111.  571. 

9  Ma?ee  v.  Union  Pac.  U.  R.  Co.  2  Sawy.  447.  Contra  :  Turton  v. 
Union  Pac.  R.  K.  Co.  3  Dill.  366.  See  Bauman  v.  Union  Pac.  Pi.  K.  Co. 
3  Dill.  367. 

10  risk  V.  Union  Pac.  Pv.  R.  Co.  6  Blatchf.  362. 

11  Fisk  V.  Union  Pac.  R.  R.  Co.  6  BlatcM.  362;  and  ownership  of 
stock  is  necessary  to  membership:  Fisk  r.  Uuioa  Pac.  R.  R.  Co.  6 
Blatchf.  362.  See  Burke  v.  Flood,  6  Sawy.  220;  S.  C.  1  Fed.  Rep.  541; 
Hawes  v.  Contra  Costa  W.  Co.  11  Fed.  Rep.  93,  note.  A  member  not 
otherwise  a  party  than  as  a  member  cannot  remove  the  cause  without 
consent  of  the  corporation:  Gard  v.  Durant,  4  Cliff.  113. 

12  Gardw.  Durant,  4  Cliff.  113. 

13  Fisk  V.  Union  Pac.  R.  R.  Co.  8  BlatcM.  243. 

14  Jones  V.  Oceanic  St.  Nav.  Co.  11  Blatchf.  406;  The  Mayor  v. 
Cooper,  6  Wall.  247;  Dennistonn  v.  Draper.  5  Blatchf.  336;  Clark  v. 
Opdyke,  17  N.  Y.  Supr.  3S3;  Magee  v.  Union  Pac.  R.  R.  Co.  2  Sawj-.  447. 

15  Jones  V.  Oceanic  .St.  Xay.  Co.  11  Blatchf.  406. 

16  Kaiur.  Texas  Pac.  R.  R.  Co.  3  Cent.  L.  J.  12. 

17  Ely  V.  Northern  Pac.  R.  R.  Co.  36  Leg.  Int.  164. 

18  Texas  v.  Texas  &  Pac.  R.  R.  Co.  3  Woods,  308. 

19  Copeland  v.  'SI.  &  C.  R.  R.  Co.  3  Woods,  651.  See  Terry  v.  Insur- 
ance Co.  3  Dill.  408. 

20  Second  Nat.  Bank  v.  N.  Y.  Silk  Manuf .  Co.  11  Fed.  Rep.  532. 

21  Scott  V.  Clinton  &  S.  R.  R.  Co.  6  Biss.  520. 

§  25,  Removal  of  causes  against  persons  denied 
any  civil  rights,  etc. —  When  any  civil  suit  or  criminal 
Xjrosecution  is  commenced  in  any  State  court,  for  any  cause 
icJiatsoever,  against  any  person  loho  is  denied  or  cannot  en- 
force in  the  judicial  tribunals  of  the  State,  or  in  the  part  of 
the  State  ichere  such  suit  or  prosecution  is  pending,  any 
right  secured  to  him  by  any  lau)  providing  for  the  equal 
civil  rights  of  citizens  of  the  United  States,  or  of  all  j^ersons 
ivithin  the  jurisdiction  of  the  United  States,  or  against  any 
officer,  civil  or  military,  or  other  person,  for  any  arrest  or 
imprisonment,  or  other  trespasses  or  wrongs,  made  or  com- 
mitted by  virtue  of  or  under  color  of  authority  derived  from 
any  law  providing  for  equal  rights  as  aforesaid,  or  for  refus- 
ing to  do  any  act  on  the  ground  that  it  xoould  be  inconsistent 
vnth  such  law,  such  suit  or  prosecution  may,  upon  the  petition 
of  such  defendant,  fded  in  said  State  court  at  any  time  before 
the  trial  or  final  hearing  of  the  cause,  stating  the  facts  and 
verified  by  oath,  be  removed  for  trial  into  the  next  circuit 
court  to  be  held  in  the  district  where  it  is  pending.    Upon  the 


§   25  CIVIL  RIGHTS.  192 

filing  of  such  petition  all  farther  proceedings  in  the  State 
courts  shall  cease,  and  shall  not  be  resumed  except  as  herein- 
after provided.  But  all  hall  and  other  security  given  in  such 
suit  or  prosecution  shall  continue  in  like  force  and  effect  as 
if  the  same  had  proceeded  to  final  judgment  and  execution  in 
the  State  court.  It  shall  be  the  duty  of  the  clerk  of  the  State 
court  to  furnish  such  defendant,  petitioning  for  a  removal, 
copies  of  said  process  against  him,  and  of  all  pleadings,  depo- 
sition, testimony,  and  other  proceedings  in  the  case.  If  such 
copies  are  filed  by  said  petitioner  in  the  circuit  court  on  the 
first  day  of  its  session,  the  cause  shall  proceed  therein  in  the 
same  manner  as  if  it  had  been  brought  there  by  original 
process ;  and  if  the  said  clerk  refuses  or  neglects  to  furnish 
such  copies,  the  petitioner  may  thereupon  docket  the  case  in  the 
circuit  co^trt,  and  the  said  court  shall  then  have  jurisdiction 
therein,  and  may,  upon  proof  of  such  refusal  or  neglect  of 
said  clerk,  and  iipon  reasonable  notice  to  the  plaintiff,  require 
the  plaintiff  to  file  a  declaration,  petition,  or  compjlalnt  in  the 
cause ;  and,  in  case  of  his  default,  may  order  a  nonsuit,  and 
dismiss  the  case  at  the  costs  of  the  pjlaintiff,  and  such  dismiss- 
al shall  be  a  bar  to  any  further  suit  touching  the  matter  in 
controversy.  But  if,  lolthout  such  refusal  or  neglect  of  said 
clerk  to  furnish  such  copies  and  proof  thereof ,  the  petitioner 
for  removal  fails  to  file  copies  in  the  circuit  court  as  herein 
provided,  a  certificate,  under  the  seal  of  the  circuit  court, 
stating  such  failure,  shall  be  given,  and  upon  the  production 
thereof  in  said  State  court,  the  cause  shall  proceed  therein 
as  if  no  petition  for  a  removal  had  been  filed. 

Kev.  Stats.  §  641;  16  U.  S.  Stats.  144;  14  id.  27;  12  id.  756;  14  id.  46. 

Note.— This  section  is  uot  in  conflict  with  the  Constitu- 
tion of  the  United  States.  Strauder  v.  West  Ya.  100  U.  S. 
303;  Fitzgerald  v.  Allman,  22  Alb.  L.  J.  218;  State  v.  Dun- 
lap,  65  X.  C.  491:  Capehart  v.  Stewart,  80  N.  C.  101.  Un- 
der the  Acts  of  1863  and  1866,  it  is  indispensable  that  the 
petition  filed  be  properly  verified.  Florence  v.  Butler,  9 
Abb.  Pr.  N.  S.  63.  That  the  Act  of  March  3,  1863,  em- 
bodied in  this  section  is  constitutional,  see  McCormick 


193  CIVIL  RIGHTS.  §  25  a 

V.  Humphrey,  27  Ind.  144;  McCormick  v.  Mayfield,  27  lud. 
143;  State  v.  Common  Pleas,  15  Ohio  St.  377;  Hodgson  v. 
Millward,  3  Grant,  412;  Kulp  v.  Eicketts,  3  Grant,  420. 

§  25  a.  Denial  of  civil  rights.— The  Constitution  and 
laws  of  the  United  States  make  the  rights  and  responsi- 
bilities, civil  and  criminal,  of  the  white  and  colored  races 
exactly  the  same ;  i  and  Congress  has  power  under  the 
Fourteenth  Amendment  to  secure  the  rights  of  the  colored 
race,  and  enforce  their  recognition,  by  providing  for  the 
removal  of  causes  into  the  Federal  courts  where  these 
rights  will  be  acknowledged,  if  denied  to  them  in  the 
State  courts;  2  and  this  section  was  intended  as  a  protec- 
tion to  them  against  State  action,  and  against  that  alone.^ 
It  is  only  when  some  State  law,  ordinance,  regulation,  or 
custom  hostile  to  these  rights  is  alleged  to  exist,  that  a  re- 
moval can  be  had  under  the  first  clause  of  this  section. ^ 
A  colored  person  cannot  remove  his  cause  unless  he  can 
show  that  the  denial  of  his  civil  rights  arises  from  an  act 
of  the  civil  government  of  the  State. »  This  section  does 
not  apply  where  the  denial  of  equal  rights,  or  an  inability 
to  enforce  them,  results  from  the  action  of  the  judiciary;  '^ 
it  must  be  a  denial  or  inability  resulting  from  the  Con- 
stitution or  laws  of  the  State;"  and  it  refers  to  legal 
disabilities  and  legal  impediments,  and  not  to  i^rivate  in- 
fringements by  prejudice  or  otherwise,  when  the  laws 
themselves  are  impartial  and  sufficient,  s 

1  Virginia  v.  Elves,  100  U.  S.  313. 

2  Virginia  v.  Rives,  100  U.  S.  313. 

3  Virginia  v.  Rives,  100  U.  S.  313. 

4  In  re  Wells,  3  Woods,  128. 

5  Fowlkes  V.  Fowlkes,  8  Cli.  L.  N.  41. 

6  Ex  parte  Virginia,  100  U.  S.  339. 

7  Ex  parte  Virginia,  100  U.  S.  339. 

8  Strauder  v.  West  Virginia,  100  U.  S.  303;  State  v.  Gaines, 3  Woods, 
342,  In  re  Wells,  3  WoodsT  128;  Thomas  v.  State,  58  Ala.  365;  State  v. 
Gleason.  12  Fla.  190;  Fitzgerald  r.  Allman.  82  N.  C.  492;  State  v.  Small, 
II  Rich  S.  C.  262;  State  v.  Dubuclet,  10  Ch.  L.  N.  132;  Le  Grand  v.  United 
States,  12  Fed.  Rep.  577,  note,  583.  Contra:  State  v.  Dimlap,65  N.  C. 
491. 

DESTY  REMOVAL.— it. 


§  25  b  cn'iL  RIGHTS.  194 

§  25  b.  In  criminal  cases. — A  criminal  case  cannot 
be  removed  prior  to  finding  an  indictment. i  If  indicted 
for  an  offense,  a  colored  person  may  remove  the  cause  if 
the  State  law  allows  none  but  white  men  to  serve  as 
jurors  ;  2  but  the  mere  fact  that  a  grand  or  petit  jury  is  not 
a  mixed  jury  does  not  give  the  right  to  a  removal;  ^  but  a 
statute  singling  out  colored  persons,  and  denying  them 
the  right  to  act  as  jurors,  denies  them  the  equal  protec- 
tion of  the  laws.4  Color  of  ofHce  is  an  apparent  or  prima 
facie  right,  an  appearance  of  right  or  authority; 5  and 
autliority  means  a  proper  legal  and  constitutional 
authority.^  An  officer  who  is  acting  in  good  faith  under 
a  warrant  is  acting  under  color  of  authority.^  An  action 
for  an  arrest  by  the  officer  of  a  municipal  corporation 
cannot  be  removed. 8  Although  the  petition  states  that 
he  was  an  officer,  yet  it  must  also  state  the  wrong  charged, 
and  that  it  was  done  by  virtue  of  authority  derived  from 
the  law.9  A  person  who  denies  participation  in  the 
arrest,  and  charges  it  upon  a  Federal  soldier,  cannot  re- 
move.i''  ^Vhere  a  negro  indicted  for  a  felony  ijetitions 
on  the  ground  that  persons  of  African  descent  were  ex- 
cluded from  the  jury,  the  petition  may  be  denied.i^  The 
trial  of  a  cause  for  rape  is  removable. 12 

1  Com.  17.  Artman,  3  Gratt.  436;  see  People  v.  Murray,  5  Parker  Cr. 
C.  577. 

2  Strauder  v.  West  Virginia,  100  U.  S.  303. 

3  Ex  parte  Virginia,  100  U.  S.  339.  Contra:  Ex  parte  Burwell,  3 
Hughes,  559. 

4  Strauder  v.  West  Virginia,  100  U.  S.  303.  See  Cases  of  Coiinty 
Judges,  3  Hughes,  576. 

5  Hodgson  V.  MiUward,  3  Grant,  412;  Kulpr.  Kicketts,  3  Grant,  420. 

6  State  V.  Bliss,  3  Grant,  427. 

7  State  i;.  Common  Pleas,  15  Ohio  St.  377;  Hodgson  v.  MiUward,  3 
Grant,  418. 

8  'Woodson  v.  Fleck,  Chase,  305. 

9  Short  V.  Wilson,  1  Bush,  350 ;  Skeen  v.  Huntington^  25  Ind.  510. 

10  Elfort  V.  Bevins,  1  Bush,  460. 

11  Neal  V.  State,  103  U.  S.  370. 

12  NeaU'.  State.  103  U.  S.  370;  Strauder  v.  West  Virginia,  100  U.  S. 
303;  Vii-ginia  v.  Eives,  100  U.  S.  313;  Ex  parte  Virginia,  100  U.  S.  339. 


195  CIVIL  RIGHTS.  §  25  c 

§  25  c,  In  general— Proceedings.— Under  tins  sec- 
tion each  defendant  may  alone  remove  the  cause. i  Upon 
filing  a  verified  petition  the  party  is  entitled  to  a  removal 
as  of  course; 2  but  the  petition  must  show  which  of  the 
rights  secured  under  the  civil  rights  bill  have  been  denied 
by  the  State  court;  ^  it  must  aflirmatively  show  that  the 
case  is  of  a  class  described  in  the  statute  as  removable.* 
The  act  provides  for  removing  the  whole  suit,  no  matter 
who  the  parties  are,  nor  what  relief  is  sought.^  To  entitle 
defendant  to  the  order  of  removal,  there  must  be  some 
color  of  substance  in  the  questions  raised ;  ^  and  if  counter 
affidavits  are  admitted  without  objection,  he  is  not  enti- 
tled to  remove  if  the  legal  results  of  the  case  presented 
show  that  he  has  no  rights."  It  is  not  necessary  to  obtain 
the  assent  of  the  State  court  under  this  section.^  The 
jurisdiction  of  the  circuit  court  under  this  section  was  not 
taken  away  by  the  Act  of  1867.^  On  petition  filed,  the 
Federal  court  is  entitled  to  assert  its  jurisdiction  by 
proper  process,  and  it  is  the  duty  of  the  State  court  to 
yield  obedience  thereto;  lo  and  if  the  State  court  proceeds 
to  try  a  party  in  a  criminal  case  after  the  filing  of  the 
petition,  the  sentence  will  be  void.^i  The  removal  au- 
thorized is  before  trial  or  final  hearing,  but  judicial  in- 
fractions of  constitutional  rights,  after  trial  commenced, 
are  left  to  the  revisory  power  of  the  Federal  courts. i^  A 
suit  to  try  title  to  a  State  office  cannot  be  removed  on  the 
alleged  grounds  that  by  bribery  and  threats  colored  voters 
were  prevented  from  voting.i^  An  action  of  ejectment 
is  not  within  the  provisions  of  this  section.i-* 

1  State  r.  Common  Pleas,  15  Ohio  St.  377. 

2  Siebrecht  r.  Butler,  2   Abb.  Pr.  N.  S.  361;    State  v.  Common 
Pleas,  15  Oliio  St.  377. 

3  State  V.  Gleason,  12  Fla.  190. 

4  Patrie  v.  Mm-ray,  43  Barb.  323;  Hodgson  r.  MiUwarcl,  3  Grant,  412. 
0    Fisk  V.  Union  Pac.  K.  Ft.  Co.  6  Blatchf .  362. 

6  Jones  r.  Seward,  40  Barb.  563. 

7  Short  V.  Wilson,  1  Bush,  350. 

8  Bell  V.  Dix,  49  N.  Y.  232. 

9  Gazaway  v.  Dana,  10  Blatchf.  34. 


§§  26-27  ACTIONS  AGAINST  OFFICERS.  196 

10  In  re  Wells,  3  Woods,  123. 

11  Ex  parte  Reynolds,  3  Hughes,  559. 

12  Virginia  v.  Kives,  100  U.  S.  313. 

13  Dubuclet  v.  State,  103  U.  S.  550  ;2  Morr.  Trans.  509. 

14  BigeloTV  V.  Forrest,  9  Wall,  339;  Martin  c.  Snowden,  18  Gratt.  100. 

§  26.    When  petitioner  is  in  actual  custody  of 

State  court.— When  all  the  acts  necessary  for  the  removal 
of  any  suit  or  prosecution,  as  provided  in  the  pr-eceding  sec- 
tion, have  been  performed,  and  the  defendant  petitioning  for 
such  removal  is  in  actual  custody  on  process  issued  by  said 
State  court,  it  shall  he  the  duty  of  the  clerk  of  said  circuit 
court  to  issue  a  writ  of  habeas  corpus  cum  causa,  and  of  the 
marshal,  by  virtue  of  said  lorit,  to  take  the  body  of  the  de- 
fendant into  his  custody,  to  be  dealt  with  in  said  circuit 
court  according  to  law  and  the  orders  of  said  court,  or,  in 
vacation,  of  any  judge  thereof;  and  the  marshal  shall  file 
icith  01  deliver  to  the  clerk  of  said  State  court  a  duplicate  copy 
of  said  lorit. 
Rev.  Stats.  §  642;  14  U.  S.  Stats.  385;  12  id.  756;  14  id.  46;  14  id.  27. 

§  26  a.  Habeas  corpus. — The  writ  of  habeas  corpus 
must  be  allowed  by  the  judge  before  it  can  be  issued  It 
may  be  issued  by  tlie  circuit  court  for  tbe  purpose  of  se- 
curing jurisdiction.! 

1    In  re  Wells,  3  Woods,  128. 

§  27.  Removal  of  suits  and  prosecutions  against 
revenue  officers  and  officers  acting  under  registra- 
tion laws. —  When  any  civil  suit  or  criminal  prosecution  is 
commenced  in  any  court  of  a  State  against  any  officer  ap- 
pointed under  or  acting  by  authority  of  any  revenue  laio  of 
of  the  United  States  noio  or  hereafter  enacted,  or  against  any 
person  acting  under  or  by  authority  of  any  such  officer,  on 
account  of  any  act  done  wider  color  of  his  office  or  of  any 
such  law,  or  on  account  of  any  right,  title,  or  authority 
claimed  by  such  officer  or  other  person  under  any  such  laic; 
or  is  commenced  against  any  x>erson  h'dding  ^rroperty  or  es- 
tate by  title  derived  from  any  such  officer,  and  affects  the 


197  ACTIONS   AGAIXST   OFl-ICERS.  §   27 

validity  of  any  such  revenue  law;  or  is  commenced  arjainst 
any  officer  of  the  United  States,  or  other  person,  on  account 
of  any  act  done  under  the  provisions  of  Title  XXVI.,  •'  The 
Elective   Franchise"  or  on  account  of  any  right,  title,  or 
authority  claimed  by  any  such  officer  or  other  person  under 
any  of  the  said  pjrovis ions — the  said  suit  or  prosecution  may, 
at  any  time  before  tJie  trial  or  final  hearinrj  thereof,  be  re- 
moved for  trial  into  the  circuit  court  next  to  be  holden  in  the 
district  where  the  same  is  pending,  upon  the  petition  of  such 
defendant  to  saidcircuit  court,  and  in  the  following  manner : 
Said  petition  shall  set  forth  the  nature  of  the  sicit  or  prosecu- 
tion, and  be  verified  by  affidavit;  and,  together  icitha  certifi- 
cate signed  by  an  attorney  or  counselor  at  law  of  so^me  court  of 
record  of  the  State  ivhere  such  suit  or  prosecution  is  com- 
menced or  of  the  United  States,  stating  that,  as  counsel  for 
the  petitioner,  he  has  examined  the  proceedings  against  him, 
and  carefully  inquired  into  all  the  matters  set  forth  in  the 
petition,  and  that  he  believes  them  to  be  true,  shall  be  pre- 
sented to  the  said  circuit  court,  if  in  session,  or  if  it  be  not,  to 
the  clerk  thereof  at  his  office,  and  shall  be  filed  in  said  office. 
The  cause  shall  thereupon  be  entered  on  the  docket  of  the  cir- 
cuit court,   and  shall  proceed  as  a  cause  originally  com- 
menced in  that  court;  but  all  bail  and  other  security  given 
upon  such  suit  or  prosecution  shall  continue  in  like  force  and 
effect  as  if  the  same  had  proceeded  to  final  judgment  and  exe- 
cution in  the  State  court.     When  the  suit  is  commenced  in 
the  State  court  by  summons,  subp(£na,  petition,  or  other  pro- 
cess except  capias,  the  clerk  of  the  circuit  court  shall  issue  a 
writ  of  certiorari  to  the  State  court,  requiring  it  to  send  to 
the  circuit  court  the  record  and  ^jroceedAngs  in  the  cause. 
When  it  is  commenced  by  capias,  or  by  any  other  similar 
form  of  proceeding  by  ichich  a  personal  arrest  is  ordered,  he 
shall  issue  a  icrit  of  habeas  corpus  cum  causa,  a  duplicate  of 
which  shall  be  delivered  to  the  clerk  of  the  State  court,  or  left 
at  his  office  by  the  marshal  of  the  district  or  his  deputy,  or 
by  some  person  duly  authorized  thereto ;  and  thereupon  it 
shall  be  the  duty  of  the  State  court  to  stay  all  further  proceed- 


§  27  a  ACTIONS  AGAINST  OFFICERS.  198 

i7i(/s  in  the  cause,  and  the  suit  or  xirosecution,  upon  delivery 
of  such  process,  or  leaving  the  same  as  aforesaid,  shall  be 
held  to  be  removed  to  the  circuit  court,  and  any  further  pro- 
ceedings, trial,  or  judgment  therein  in  the  State  court  shall 
be  void.  And  if  the  defendant  in  the  suit  or  prosecution  be 
in  actual  custody  on  mesne  process  therein,  it  shall  be  the 
duty  of  the  marshal,  by  virtue  of  the  tcrit  of  habeas  corpus 
cum  causa,  to  take  the  body  of  the  defendant  into  his  custody, 
to  be  dealt  icith  in  the  cause  according  to  law  and  the  order 
of  the  circuit  court,  or,  in  vacation,  of  any  judge  thereof; 
and  if,  'upon  the  removal  of  such  suit  or  prosecution,  it  is 
made  to  appear  to  the  circuit  court  that  no  cojyyofthe  record 
and  proceedings  therein  in  the  State  court  can  be  obtained, 
the  circuit  court  may  allow  and  require  the  pjlaintiff  to  pro- 
ceed de  novo,  and  to  file  a  declaration  of  his  cause  of  action, 
and  the  ptarties  may  thereupon  proceed  as  in  actions  origi- 
nally brought  in  said  circuit  court.  On  failure  of  the 
jjlaintiff  so  to  proceed,  judgment  of  non  prosequitur  may  be 
rendered  against  him,  tcith  costs  for  the  defendant. 
Eev.  Stats.  §  &43;  4  U.  S.  Stats.  633;  14  id.  171;  16  id.  433. 

XoTE.— This  section  ia  not  in  conflict  with  the  Consti- 
tution. Venahle  v.  Richards,  1  Hughes,  326;  Tennessee 
V.  Davis,  100  U.  S.  257;  State  v.  Port,  3  Fed.  Rep.  119; 
Findley  r.  Satterfield,  3  Woods,  504;  State  v.  Hoskins,  77 
X.  C.  530;  State  v.  Deaver,  77  X.  C.  555.  And  is  not  super- 
seded by  the  Act  of  March  3,  1875.  Yenable  v.  Richards, 
4  Morr.  Trans.  G89.  Similar  provisions  are  to  be  found  in 
the  Act  of  July  13,  18GG,  relating  to  internal  taxation, 
and  in  the  Act  of  March  2,  1833,  j)roviding  for  the  collec- 
tion of  duties  on  imports.  Yenuble  r.  Richards,  4  Morr. 
Trans.  G89. 

§  27  a.  In  general  — This  section  contemplates  a 
change  of  tribunal,  and  not  of  prosecuting  oflScers.i  The 
object  being  to  take  from  the  State  court  jurisdiction  of 
all  cases  that  fall  within  its  terms  as  soon  as  they  are 
commenced.-    The    jurisdiction  of  the  circuit  court  in 


199  ACTIONS  AGAINST  OFFICERS.  §  27  b 

original  suits  between  citizens  of  the  same  State  in  in- 
ternal revenue  cases  conferred  by  the  Act  of  June  30, 
1864,  was  taken  away  by  the  Act  of  July  13,  1866,3  but  it 
is  saved  by  the  latter  act,  if  the  justice  of  the  circuit 
court  is  of  opinion  that  the  cause  would  be  removable 
under  such  act.*  This  section  was  previously  held  to  be 
in  force  as  to  the  removal  of  revenue  causes,  except 
those  arising  under  the  internal  revenue  laws.^  A  re- 
moA^al  under  this  section  does  not  bring  with  it  the  State 
law  as  to  costs.  They  are  subject  to  the  twelfth  section 
of  the  Judiciary  Act. 6  The  government  is  responsible 
for  clerks'  charges  for  necessary  services,  on  the  removal 
of  election  cases."  Where  plaintiff  appeals,  defendant 
cannot  remove.^ 

1  State  V.  Emerson,  8  Fed.  Rep.  411. 

2  State  V.  Port,  3  Fed.  Rep.  121. 

3  Ins.  Co.  V.  Ritchie,  5  Wall.  541. 

4  City  of  Pliiladelphia  v.  Tlie  Collector,  5  "WaU.  720. 

5  Pej'ton  V.  Bliss,  1  VToolw.  170;  Stevens  v.  Mack,  5  Blatchf.  514. 

6  Wood  f.  Matthews,  2  Blatchf.  370. 

7  In  re  Clerks'  Charges,  5  Fed.  Rep.  440. 

8  Price  v.  Sommers,  8  Ch.  L.  N.  290. 

§  27  b.  Suits  removable.— Any  law  which  provides 
for  the  assessment  and  collection  of  a  tax  to  defray  the 
expenses  of  government  is  a  revenue  law.i  So  an  act 
that  imposes  a  direct  tax  is  a  revenue  law.-  The  duty 
paid  for  the  carriage  of  letters  by  the  agency  of  the  gov- 
ernment is  a  branch  of  the  public  revenue.3  A  suit 
against  an  officer  may  be  removed,  although  he  is  sued 
individually,  and  is  sought  to  be  held  as  a  wrong-doer ;  * 
so  an  action  of  slander  against  a  revenue  officer  is  re- 
movable ;5  or  an  action  against  a  collector  of  internal 
revenue  to  recover  money  alleged  to  have  been  illegally 
exacted; 6  or  against  a  postmaster  for  a  wrongful  refusal 
to  deliver  a  letter."  The  riglit  to  remove  is  given  in  any 
case  provided  for  without  regard  to  the  amount  in  con- 
ta"0versy,8  and  without  regard  to  the  expense  or  incon- 


§   27  C  ACTIONS   AGAINST   OFFICERS.  200 

venience  ot  the  parties. 9  A  suit  by  an  informer  against 
a  collector  to  recover  a  share  of  a  forfeiture  may  be 
removed.i'^  A  commissioner,  sued  for  fees  illegally  ex- 
acted, cannot  remove  the  suit.n  A  member  of  a  return- 
ing board  is  a  State  officer. i^  A  marshal  sued  for  tres- 
pass in  taking  goods  on  execution  cannot  remove. i^ 

1  Peyton  v.  Bliss,  1  Woolw.  170.  See  Warner  v.  Fowler,  4  Blatcbf . 
311. 

2  Peyton  v.  Bliss,  1  Woolw.  170. 

3  Warner  v.  Fowler,  4  Blatchf.  311. 

4  Van  Zandt  i-.  Maxwell,  2  Blatchf.  421. 

5  Buttner  v.  Miller,  1  Woods,  620. 

6  Philadelphia  v.  Collector,  5  Wall.  720;  Salt  Co.  v.  Wilkinson,  8 
Blatchf.  ao.    Contra:   Stevens  r.  Mack,  5  Blatchf.  514. 

7  Warner  v.  Fowler,  4  Blatchf.  311. 

8  Wood  V.  Matthews,  2  Blatchf.  370. 

9  Wood  V.  Matthews,  2  Blatchf.  370. 

10  VanZandtr.  Maxwell,  2  Blatchf.  421. 

11  Benchley  v.  Gilbert,  8  Blatchf.  147. 

12  Ex  parte  Anderson,  3  Woods,  124. 

13  McKee  v.  Rains,  10  Wall.  22. 

§  27  c.  Criminal  cases.— This  section  applies  to  crim- 
inal cases  where  the  defense  arises  under  a  law  of  the 
United  States.^  A  criminal  proceeding  is  not  commenced 
till  the  warrant  is  issued;^  but  is  commenced  as  soon  as 
the  warrant  is  issued; 3  and  when  the  warrant  is  issued, 
it  is  removable,  although  issued  by  a  justice  of  the  peace.^ 
If  removed  after  arrest  and  before  commitment,  the  pre- 
liminary examination  may  be  taken  before  the  court;  ^ 
and  if  removed  before  indictment,  the  indictment  may  be 
found  by  the  grand  jury  of  the  circuit  court.6  A  party 
indicted  in  a  State  court  for  an  action  done  under  color  of 
the  revenue  laws  may  remove  the  cause  into  the  Federal 
court;"  but  a  jjerson  indicted  for  maintaining  a  nuisance 
under  the  laws  of  a  State  cannot  remove  the  cause. s  If  a 
criminal  case  is  removed,  it  must  be  determined  according 
to  the  law  of  the  State.9 

1  Findley  t\  Satterfield,  3  Woods,  504;  State  v.  Davis,  12  S.  C.  528. 

2  State  V.  Port,  3  Fed.  Kep.  117. 


201  ACTIOKS  AGAINST   OFFICERS.  27  d 

3  State  V.  Bolton,  11  Fed.  Rep.  217. 

4  State  V.  Port,  3  Fed.  Rep.  117;  State  v.  Bolton,  11  Fed.  Eep.  217, 

5  State  V.  Port,  3  Fed.  Rep.  117. 

6  State  V.  Port,  3  Fed.  Rep.  117. 

7  Georgia  v.  O'Grady,  3  Woods, 469;  Findlay  v.  Satterfleld,  3  Woods, 
504;  Tennessee  v.  Davis,  100  U.  S.  L'57;  State  v.  Hoskins,  77  N.  C.  530. 

8  Com.  V.  Casey,  94  Mass.  214. 

9  Tennessee  v.  Davis,  100  U.  S.  257;  Georgia  v.  O'Grady,  3  Woods, 

469;Find.eyr.  Satterfleld,  3  Woods,  504. 

§  27  d.  Practice  and  procedure.— Under  this  section 
a  removal  may  be  had  without  regard  to  the  amount  in 
controversy.!  The  proceedings  are  confined  to  action  in 
the  circuit  court;  the  statute  addresses  the  State  court 
wholly  by  inhibition .2  All  that  the  statute  requires  is 
that  it  shall  appear  from  the  petition  that  defendant  was 
sued  on  account  of  acts  done  by  liim  under  the  laws  of 
tlie  United  States; 3  and  the  petition  must  show  a  case 
arising  under  such  laws,  and  must  show  a  defense  thereto 
that,  upon  the  facts,  it  may  appear  that  some  material 
question  may  arise  under  those  laws.^  It  must  specify 
the  act  done ;  ^  but  it  need  not  state  the  particular  in-ocess 
or  writ.6  This  act  applies  to  every  case  where  the  offense 
alleged  is  committed  under  the  color  of  office;"  and  the 
question  whether  propertj^  was  seized  by  defendant  in  the 
jierformance  of  his  official  duties  is  a  matter  involved  in 
the  merits,  and  not  to  be  raised  on  a  motion  to  dismiss  the 
suit. 8  A  suit  against  a  T'lited  States  officer  is  not  remov- 
able under  the  Act  of  1833,  on  the  ground  that  the  act 
complained  of  was  done  under  the  instructions  of  the 
treasury  department.^  The  statute  requires,  when  the 
proper  petition  and  certificate  have  been  filed,  that  the 
clerk  shall  file  said  petition,  and  "sliall  enter"  the  cause 
upon  the  docket  of  the  circuit  court  as  pending,  and 
"shall  issue"  duplicate  writs,  etc.i^  The  criminal  prose- 
cution is  commenced,  within  the  meaning  of  this  section, 
as  soon  as  a  warrant  has  been  issued,  aud  is  then  remov- 
able; ^  and  the  filing  of  the  petition  and  the  service  on 
the  State  court  of  a  duplicate  of  the  writ  of  habeas  corpus 


27  e  ACTIONS  AGATNST  OFFICERS.  202 

cum  causa,  ipsofacio  removes  the  prosecution. 12  It  is  the 
duty  of  the  clerk  in  vacation  to  see  that  the  petition  con- 
tains the  averments  necessary  to  bring  the  case  within  the 
statute.  13 

1  Wood  V.  Mattliews,  2  BlatcM.  370. 

2  risk  V.  Union  Pac.  E.  K.  Co.  6  Blatchf .  362. 

3  Abranches  v.  Schell,  4  Blatchf.  256. 

4  Salem  &  Lowell  R.  R.  Co.  v.  Boston  &  Lowell  K.  R.  Co.  21  Law  Re- 
porter, 210. 

5  Ex  parte  Anderson,  3  Woods,  124. 

6  Abranches  v.  Schell,  4  Blatchf.  256. 

7  Venable  r.  Richartls,  1  Hughes,  326;  Findley  v.  Satterfield,  3 
Woods,  504. 

8  Wood  V.  Matthews,  2  Blatchf.  370. 

9  Vietor  v.  Cisco,  5  Blatchf.  128.  But  see  Benchley  v.  Gilbert,  8 
Blatchf.  147;  Salt  Co.  v.  Wilkinson,  8  Blatchf.  30. 

10  In  re  Clarke's  Charge,  5  Fed.  Rep.  441. 

11  'State  V.  Bolton,  11  Fed.  Rep.  217. 

12  State  V.  Port,  3  Fed.  Rep.  124. 

13  Salem  &  Lowell  R.  R.  Co.  v.  Boston  &  L.  R.  R.  Co.  21  Law.  Rep. 
210. 

§  27  e.  Enforcing  rem.o^dil.— Certiorari  will  lie  to 
bring  the  record,  and  if  the  defendant  is  in  custody  Aa6eas 
corpus  lies  to  bring  the  i^arty.i  They  issue  for  these  pur- 
pose only,2  and  their  issuance  is  only  a  mode  of  notitica- 
tion  to  the  State  court.3  Service  by  leaving  a  duplicate 
with  the  clerk  of  the  State  court  is  sufficient;-*  and  if 
delivered  to  or  left  at  the  office  of  the  clerk,  the  case  is 
ipso  facto  removed,^  and  no  return  is  necessary. 6  An 
application  for  a  certiorari  must  state  facts  sufficient  to 
show  a  cause  within  the  i)rovision  of  the  statute;  it  is  not 
sufficient  to  state  facts  generally,  as  that  he  intends  to 
rely  on  the  revenue  laws  of  the  State." 

1  State  r.  Hoskins,  77  N.  C.  530.  See  Com.  v.  Casey,  94  Mass.  214; 
People  z;.  Murray,  5  Parker  Cr.  C.  577. 

2  Abranches  v.  Schell,  4  Blatchf.  256. 

3  Fisk  V.  Union  Pac.  R.  R.  Co.  6  Blatchf.  362. 

4  Abranches  r.  Schell,  4  Blatchf.  256. 

5  Fisk  V.  Union  Pac.  R.  R.  Co.  6  Blatchf.  362. 

6  Fisk  V.  Union  Pac.  R.  R.  Co.  6  Blatchf.  362. 

7  Salem  &  Lowell  R.  R.  Co.  v,  Boston  &  L.  R.  R.  Co.  11  The  Re- 
porter, 210. 


203  SPECL\L  PROVISIOXS.  §§  28-31 

§  28.  Removal  of  suits  by  aliens  in  a  particular 
case. —  Whenever  a  personal  action  has  been  or  shall  be 
brought  in  any  State  court  by  an  alien  against  any  citizen 
of  a  State  loho  is,  or  at  the  time  the  alleged  action  accrued 
xoas,  a  civil  officer  of  the  United  States,  being  a  non-resident 
of  that  State  ivherein  jurisdiction  is  obtained  by  the  State 
court,  by  personal  service  of  process,  such  action  may  be  re- 
moved into  the  circuit  court  of  the  United  States  in  and  for 
the  district  in  which  the  defendant  shall  have  been  served 
with  the  process,  in  the  same  manner  as  now  provided  for 
the  removal  of  an  action  brought  in  a  State  court  by  the  pro- 
visions of  the  preceding  section. 

Rev.  Stats.  §  644;  17  U.  S.  Stats.  44. 

§  29.—/;?.  all  cases  of  removal  of  suits  from  the  courts  of 
the  State  of  Georgia  to  the  courts  of  the  United  States  in  the 
southern  district  of  Georgia,  such  removal  shall  be  to  the 
United  States  courts  in  the  division  in  lohich  the  county  is 
situated  from  v:hich  the  removal  is  made ;  and  the  time 
within  which  the  removal  shall  be  perfected,  in  so  far  as  it 
refers  to  or  is  regulated  by  the  terms  of  the  United  States 
courts,  shall  be  deemed  to  refer  to  the  terms  of  the  United 
States  courts  in  such  division. 

§  7  of  Act  of  Jan.  29, 1880;  21  U.  S.  Stats.  63. 

§  30.— In  all  cases  of  removal  of  suits  from  the  courts  of 
the  State  of  Ohio  to  the  courts  of  the  United  States  in  the 
southern  district  of  Ohio,  such  removal  shall  be  to  the  United 
States  courts  in  the  division  in  ichich  the  county  is  situated 
from  which  the  removal  is  made ;  and  the  time  icithin  ivhich 
the  removal  shall  be  perfected,  in  so  far  as  it  refers  to  or  is 
regulated  by  the  terms  of  the  United  States  courts,  shall 
be  deemed  to  refer  to  the  terms  of  the  United  States  courts  in 
such  division. 

§  8  of  Act  of  Feb.  4, 1880;  21  U.  S.  Stats.  64. 

§  31.— In  all  cases  of  removal  of  suits  from  the  courts  of 
the  State  of  Tennessee  to  the  courts  of  the  United  States  in 


§§   32-33  LOCAL  STATUTES.  204 

the  eastern  district  of  Tennessee,  such  removal  shall  he  to  the 
United  States  courts  in  the  division  in  ichich  the  county  is 
situated  from  which  the  removal  is  made;  and  the  time  with- 
in which  the  removal  shall  he  perfected,  in  so  far  as  it  refers 
to  or  is  regulated  hu  the  terms  of  the  United  States  courts, 
shall  he  deemed  to  refer  to  the  terms  of  the  United  States 
courts  in  such  division. 

g  8  of  Act  of  June  11, 1380;  21  U.  S.  Stats.  171. 

§  32.  Business  of  the  circuit  court  for  the  two 
districts  of  Missouri  transferred,  how.— The  circuit 
court  for  the  eastern  district  of  Missouri  is  vested  with  full 
and  complete  jurisdiction  to  hear,  determine,  and  dispose  of, 
according  to  the  usual  course  of  judicial  proceedings,  all 
suits,  causes,  motions,  and  other  matters  which  were  pending 
in  the  circuit  court  of  the  United  States  in  and  for  the  dis- 
tricts of  Missouri  at  the  time  the  said  circuit  court  for  the 
eastern  district  of  Missouri  loas  created,  on  the  eighth  daij 
of  June,  eighteen  hundred  and  seventy-two,  and  also  all 
other  matters  which  have  since  arisen  that  pertain  to  said 
suits  or  causes,  and  also  to  make  all  orders  and  issue  of  * 
all iirocesses  lohich  said  circuit  court  of  the  United  States  in 
and  for  the  districts  of  3Iissouri  might  have  done  if  it  had 
not  ceased  to  exist;  and  said  circuit  court  for  said  eastern 
district  of  Missouri  is  vested  icith  jurisdiction  and  authority 
to  do  all  and  singular  that  may  in  the  due  course  of  judicial 
proceedings  pertain  to  any  of  said  suits,  causes,  or  unfinished 
husiness  as  fully  as  the  said  circuit  court  in  and  for  the  dis- 
tricts of  Missouri  might  have  done  if  said  circuit  court  had 
not  ceased  to  exist. 

-Rev.  Stats.  §  653;  17  U.  S.  Stats.  476. 

§  33.  Process  issued  out  of  former  circuit  court 
for  Missouri. — The  service  of  process,  mesne  or  final,  issued 
oiit  of  said  circuit  court  of  the  United  States  in  and  for  the 
districts  of  Missouri,  which  service  ivas  had  after  the  eighth 
day  of  June,  eighteen  hundred  and  seventy-two,  and  all  lev- 
*  The  worU  of  in  the  roll  redundant. 


205  LOCAL   STATUTES.  §§   34-35 

ies,  seizures,  and  sales  made  thereunder,  also  all  service,  seiz- 
ure, levies,  and  sales  made  under  any  process  lohich  issued 
as  out  of  said  court  after  the  said  eighth  day  of  June,  eigh- 
teen hundred  and.  seventy-two,  are  made  valid,  and  all  said 
processes  are  to  he  decerned  returnable  to  said  circuit  court  of 
the  United.  States  in  and  for  the  eastern  district  of  Missouri, 
as  of  the  return  day  thereof. 
Rev.  Stats.  §  654;  17  U.  S.  Stats.  476. 

§  34.  Transfer  of  cases  between  eastern  and 
■western  districts.— Z/^/iC/-  of  the  circuit  courts  for  the 
eastern  and  for  the  icestern  district  of  Missouri  may  order 
any  suit,  cause,  or  other  matter  pending  therein,  and  com- 
menced prior  to  the  creation  of  said  neio  court,  to  be  trans- 
ferred for  trial  or  determination  to  the  other  of  said  circuit 
courts  ichen,  in  the  opinion  of  the  court,  said  transfer  ought 
to  be  made;  and  the  court  to  lohich  said  transfer  is  made 
shall  have  as  full  authority  and  jurisdiction  over  the  same 
from  the  date  the  certified  transcript  of  the  record  thereof  is 
filed  as  if  the  same  had  been  originally  pending  therein. 

Rev.  Stats.  §  655;  17  U.  S.  Stats.  476. 

§  35.  Custody  of  books,  papers,  etc.,  of  circuit 
court  of  Missouri.— r/iai  the  clerk  of  the  circuit  court  for 
the  eastern  district  of  Missouri,  and  his  successors  in  office, 
shall  have  the  custody  of  all  records,  books, papers,  and  prop- 
erty belonging  or  in  any  vnse  appertaining  to  said  circuit 
court  of  the  United  States  in  and  for  the  districts  of  Missouri, 
and,  as  such  custodians  and  the  successors  of  the  clerk  of 
said  last-named  court,  they  are  hereby  invested  vnth  the  same 
powers  and  authority  vnth  respect  thereto  as  the  clerk  there- 
of had  during  the  existence  of  said  last-named  circuit  court. 
Said  circuit  court  for  the  eastern  district  of  Missouri  is  here- 
by made  the  successor  of  said  circuit  court  of  the  United 
States  in  and  for  the  districts  of  Missouri  as  to  all  suits, 
causes,  and  unfinished  business  therein,  or  in  any  wise  per- 
taining thereto,  except  as  hereinbefore  provided. 

17  U.  S.  Stats.  476;  Rev.  Stats.  §  656. 
Desty  Removal.— 18. 


§§  36-36  a  LOCAL  statutes.  206 

§  36.  Circuit  court  for  southern  district  of  New 
York,  how  limited. — The  original  jurisdiction  of  the  cir- 
cuit court  for  the  southern  district  of  New  York  shall  not  he 
construed  to  extend  to  causes  of  action  arising  loithin  the 
northern  district  of  said  State. 

Kev.  Stats.  §  657;  3  U.  S.  Stats.  415. 

§  36  a.  Jurisdiction.— The  prorisions  of  this  section 
extend  to  a  suit  in  equity,  founded  on  letters  patent  for 
an  infringement  occurring  in  the  northern  district  of 
Kew  York;i  but  the  objection  for  the  want  of  jurisdic- 
tion may  be  waived,  and  is  waived  in  a  suit  in  equity 
where  it  is  not  raised  in  tlie  answer.2  This  section  does 
not  exclude  from  the  jurisdiction  of  the  circuit  court  of 
the  United  States  for  the  southern  district  of  Kew  York 
causes  of  action  arising  out  of  the  State. 3 

1  Hodge  V.  Hudson  Eiver  E.  K.  Co.  6  Blatchf.  85 

2  Black  V.  Thome,  10  BlatcM .  66. 

3  Wbeeler  v.  McCormick,  8  Blatchf.  268. 


PEECEDE]:^TS. 


PETITION  AXD   BOND. 

[Under  Act  of  1875,  reported  in  Kemoval  Cases,  100  U.  S.  463.] 

In  the  Circuit  Court  of  Delaioare  County,  loiva. 

The  Delaware  Hailroad  Construction  Co.  vs.  Lewis 
H.  Meyer  and  Willia3i  Dennison,  Trustees. 

Now  come  your  petitioners,  Lewis  H.  Meyer  and  AVm. 
Dennison,  trustees,  and  state : 

That  the  Delaware  Kailroad  Construction  Company 
and  all  persons  who  have  come  in  as  intervenors  in  the 
above-entitled  cause  are  citizens  of  the  State  of  Iowa; 
that  Lewis  H.  Meyer  is  a  citizen  of  the  State  of  New 
York,  and  William  Dennison  a  citizen  of  the  State  of  Ohio. 

That  they  have  reason  to  believe  and  do  believe  that 
from  prejudice  or  local  influence  they  will  not  be  able  to 
secure  justice,  by  reason  of  such  prejudice  or  local  influ- 
ence. 

That  said  cause  can  be  fully  and  finally  determined 
in  the  United  States  circuit  court  for  the  district  of  Ohio. 

That  the  amount  in  controversy  in  said  cause  amounts 
to  more  than  the  sum  of  five  hundred  dollars,  exclusive 
of  costs,  and  they  make  and  file  in  this  court  a  bond,  with 
good  and  sufficient  security,  for  their  entering  in  sucli 
circuit  court,  on  the  first  day  of  its  next  session,  a  copy  of 
the  records  in  said  suit,  and  for  i^aying  all  costs  that  may 
be  awarded  by  said  circuit  court,  if  said  court  shall  hold 
that  said  suit  shall  be  wrongfully  or  imjproperly  trans- 
ferred thereto,  and  also  for  the  appearing  and  entering 
special  bail  in  such  suit,  if  special  bail  was  originally  re- 


208'  PRECEDENTS. 

quisite  therein  ;  and  they  pray  of  said  court  to  accept  said 
petition  and  bond,  and  order  the  transfer  of  the  said  cause 
to  the  said  circuit  court  of  the  United  States. 

This  petition  was  not  signed  or  sworn  to,  but  was  ac- 
companied by  a  bond,  as  follows: 

In  the  Circuit  Court  of  Delaware  County,  Iowa. 

Know  all  men  by  these  presents,  that  we,  Lewis  H, 
Meyer  and  AYilliam  Dennison,  principals,  and  John  E. 
Henry  and  Charles  Whitaker,  as  sureties,  are  held  and 
firmly  bound  unto  the  Delaware  Railroad  Construction 
Company,  and  all  other  persons  whom  it  may  concern,  in 
the  penal  sum  of  one  thousand  dollars,  to  which  payment 
we  bind  ourselves  and  each  of  us  by  these  presents. 
Given  under  our  hands  this  lifteenth  day  of  May,  1875. 

The  conditions  of  this  obligation  are  these:  The  said 
Lewis  H.  Meyer  and  William  Dennison  have  applied  to 
the  circuit  court  of  said  county  to  remove  a  certain  cause 
pending  in  said  court,  wherein  the  Delaware  Railroad 
Construction  Company  are  plaintiffs,  and  the  said  Lewis 
H.  Meyer,  trustee,  successor  to  John  Edgar  Thompson, 
and  William  Dennison,  trustees,  and  many  others  are  de- 
fendants, from  the  said  circuit  court  to  the  circuit  court 
of  the  United  States  for  the  district  of  Iowa: 

Xow  if  said  Meyer  and  Dennison  shall  enter  in  the 
said  circuit  court  of  the  United  States  for  the  district  of 
Iowa,  on  the  first  day  of  the  next  term  thereof,  a  copy  of 
the  record  of  said  suit,  and  shall  pay  all  the  costs  that 
may  accrue  or  be  awarded  by  said  circuit  court  if  it  shall 
hold  that  said  suit  was  Avrongf  ully  or  improperly  removed 
thereto,  and  shall  also  appear  and  enter  special  bail  in 
said  circuit  court  in  said  suit  if  special  bail  was  originally 
required  therein,  then  this  obligation  shall  be  void; 
otherwise,  in  full  force. 

William  Dexxisox  and  L.  H.  Meyer,  Trustees. 
By  Grant  &  Smith,  Their  Att'ys. 

C.  Whitaker, 

John  E.  Henry,  Sureties. 


BUKKE  VS.    FLOOD.  209 

BuEKE  VS.  Flood. 

(Reported  6  Sawy.  220.) 

PETITION. 

[Under  first  clause  of  sec.  2,  Stats.  1875.] 

In  the  District  Court  of  the  Twelfth  Judicial  District  of  the 
State  of  California,  in  and  for  the  Cit)j  and  County  of 
Sa7i  Francisco. 

John  H.  Burke,  Plaintiff,  vs.  James  C.  Flood,  John 
W.  jNLickay,  James  G.  Fair,  Pacific  Wood,  Lumber, 
AND  Flume  Company,  and  the  Consolidated  Virginia 
Mining  Company,  Defendants. 

To  the  Honorable  the  Twelfth  District  Court  of  the  State  of 

California  : 

Your  petitioners,  James  C.  Flood,  Jolm  AV.  Mackay, 
James  G.  Fair,  Pacific  ^Yood,  Lumber,  and  Flume  Com- 
pany, and  the  Consolidated  Virginia  Mining  Company, 
respectfully  show  that  they  are  the  defendants  in  the 
above-entitled  action,  which  was  commenced  on  the 
day  of  October,  1878,  and  is  now  pending  in  the  said 
court,  and  that  at  the  time  of  the  commencement  of  said 
action,  the  plaintiff,  and  also  James  C.  Flood,  the  Pacific 
Wood,  Lumber,  and  Flume  Company,  and  the  Consoli- 
dated Virginia  Mining  Company,  three  of  the  defendants 
named,  were  and  still  are,  each  and  all  of  them,  citizens 
and  residents  of  the  State  of  California;  and  the  defend- 
ants John  W.  Mackay  and  James  G.  Fair  were  then  and 
still  are  citizens  and  residents  of  the  State  of  Nevada. 

Your  petitioners  further  state  that  in  the  complaint  in 
said  action  it  is  alleged  that  the  plaintiff  is  a  stockholder 
in  the  Consolidated  Virginia  Mining  Company,  defendant, 
and  that  the  defendants  James  C.  Flood,  John  W. 
Mackay,  and  James  G.  Fair  were  formerly  directors  in 
the  said  corporation,  and  while  acting  in  such  capacity 
were  guilty  of  various  breaches  of  trust  in  making  illegal 


210  PRECEDENTS. 

contracts  ou  behalf  of  the  corporation,  for  their  own  profit 
and  advantage,  and  in  wrongfully  using  and  dealing  with 
the  corporate  property,  for  their  own  private  benefit;  and 
that  the  Pacific  Wood,  Lumber,  and  Flume  Company,  de- 
fendant, was  at  the  time  a  corporation  controlled  by  the 
said  three  defendants  last  named,  and  colluding  and  co- 
operating with  them  and  each  of  them  in  the  acts  consti- 
tuting the  alleged  breaches  of  trust;  and  the  relief  sought 
is  a  recovery  by  the  Consolidated  Virginia  Mining  Com- 
pany, defendant,  against  said  other  defendants,  of  the 
damages  alleged  to  have  been  sustained  by  said  Consoli- 
dated Virginia  Mining  Company,  by  reason  of  the  alleged 
wrongful  acts  and  breaches  of  trust  charged  in  the  com- 
plaint. 

Your  i^etitioners  further  state  that  the  matter  in  dispute 
in  said  action  exceeds  the  sum  of  five  hundred  dollars, 
exclusive  of  costs;  that  all  of  the  defendants  have  ap- 
peared therein;  but  that  the  same  has  not  been  tried,  nor 
has  any  answer  been  filed  therein  by  any  of  the  defend- 
ants, but  the  same  is  now  pending  on  demurrer  to  the 
complaint. 

Your  petitioners  further  aver  that  the  said  suit  is  one  in 
which  there  can  be  a  final  determination  of  the  contro- 
versy so  far  as  concerns  the  said  John  W.  Mackay  and 
James  G.  Fair,  without  the  presence  of  either  of  the  other 
defendants  as  parties  in  the  cause,  the  Consolidated  Vir- 
ginia Mining  ComjDany,  named  as  defendant,  being  in 
fact  only  nominally  a  defendant,  against  whom  no  relief 
is  sought,  and  whose  interest  in  the  controversy,  so  far  as 
any  exists,  is  identical  with  that  of  the  plaintiff. 

Your  i^etitioners  further  aver  that  the  controversy  in 
said  suit,  so  far  as  it  resx)ects  said  John  W.  Mackay  and 
James  G.  Fair,  is  wholly  between  citizens  of  different 
States,  and  can  be  fully  determined  as  between  them. 

Your  petitioners  desire  to  remove  the  said  suit  into  the 
circuit  court  of  the  United  States  for  the  District  of  Cali- 
fornia, in  pursuance  to  the  Acts  of  Congress  in  that  behalf, 


BURKE  VS.    FLOOD.  211 

provided  and  herewith  offer  their  bond  executed  by 

of  as  surety  in  the  penal  sum  of  two  thou- 

sand dollars,  conditioned  as  by  said  acts  of  Congress  re- 
quired. 

Your  petitioners  therefore  pray  that  the  said  bond  may 
be  accepted  as  good  and  sufficient,  according  to  the  said 
Act  of  Congress,  and  that  the  said  suit  may  be  removed 
into  the  next  circuit  court  of  the  United  States  in  and 
for  the  District  of  California,  pursuant  to  the  Acts  of  Con- 
gress in  such  case  made  and  provided,  and  that  no  further 
proceedings  may  be  had  therein,  in  this  court  ;  and  your 
petitioners  will  ever  pray,  etc. 

McAllisters  &  Bergix, 
Atty's  and  Solicitors  for  Petitioners. 

State  of  Caltforxli,  ) 

City  and  County  of  San  Francisco.  ) 

John  W.  Mackay,  being  duly  sworn,  says  that  the  facts 
stated  in  the  foregoing  i^etition  are  true. 

J.  Mackay. 

Subscribed  and  sworn  to  before  me,  this  10th  day  of 
May,  1879. 

[seal.]  Holland  Smith,  Notary  Puhlic. 

Another  petition  (under  Rev.  Stats,  sec.  639,  second 
subd.)  was  filed  in  this  case  by  two  of  the  foregoing  de- 
fendants who  were  non-residents,  differing  from  the  above 
petition  only  in  the  following  phrases : 

Your  petitioners,  John  W.  Mackay  and  James  G,  Fair, 
respectfully  show  that  they  are  two  of  the  defendants  in 
the  above-entitled  action. 

And  each  of  your  petitioners  was  then  and  still  is  a 
citizen  and  resident  of  the  State  of  Nevada. 

That  the  defendant  James  C.  Flood  and  your  i^etitioners 
were  formerly  directors. 

Your  petitioners  further  aver  that  the  said  suit  is  one  in 
which  there  can  be  a  linal  determination  of  the  contro- 


212  PKECEDENTS. 

versy,  so  far  as  concerns  both  and  eacli  of  your  petitioners, 
ATitbout  the  presence,  etc. 

Your  iietitioners  further  aver  that  the  controversy  in 
said  court,  so  far  as  it  respects  your  petitioners,  is  wholly 
between  citizens  of  different  States,  and  can  be  fully 
determined  as  between  them.  Your  petitioners  desire  to 
remove  the  said  suit,  in  so  far  as  concerns  both  and  each 
of  them,  into  the  circuit  court. 

BOND. 

Know  all  men  by  these  presents,  that  we,  John  W. 
Mackay  as  principal,  and  Cornelius  O'Connor,  of  the 
city  of  San  Francisco,  as  surety,  are  hereby  held  and 
firmly  bound  unto  John  H.  Burke,  in  the  penal  sum  of 
two  thousand  ($2,000)  dollars,  lawful  money  of  the  United 
States,  for  the  payment  of  which,  well  and  truly  to  be 
made,  we  bind  ourselves  jointly  and  severally  firmly  by 
these  presents. 

The  condition  of  this  obligation  is  such  that  if  the 
defendants  hereinafter  named  shall  enter  and  file  or 
cause  to  be  entered  and  filed  in  the  next  circuit  court  of 
the  United  States  in  and  for  the  District  of  California,  on 
the  first  day  of  its  session,  copies  of  all  process,  plead- 
ings, depositions,  testimony,  and  other  proceedings  in  a 
certain  suit  or  action  now  pending  in  the  District  Court 
of  the  Twelfth  Judicial  District  in  and  for  the  city  and 
county  of  San  Francisco,  State  of  California,  in  which 
John  H.  Burke  is  plaintiff,  and  James  C.  Flood,  John  W. 
Mackay,  James  G.  Fair,  Pacific  Wood,  Lumber,  and 
Flume  Company,  and  the  Consolidated  Virginia  Mining 
Company  are  defendants;  and  shall  do  such  other  appro- 
priate acts  as  by  the  Acts  of  Congress  in  that  behalf  are 
required  to  be  done  upon  the  removal  of  such  suit  from 
said  State  court  into  the  said  United  States  court— then 
this  obligation  to  be  void  ;  otherwise  of  force. 

Dated  May  10th.  1879. 

J.  Mackay, 

C.    O'CONXOR. 


burke  vs.  flood.  213 

State  of  California,  / 

City  and  County  of  San  Francisco,  j  ^^• 

I,  Cornelius  O'Conaor,  of  said  county,  the  surety 
named  in  the  foregoing  bond,  being  duly  sworn,  do 
depose  and  say  that  I  am  a  resident  of  the  State  of  Cali- 
fornia, and  a  property  holder  therein,  and  am  worth  the 
sum  of  four  thousand  dollars  over  and  above  my  just 
debts  and  liabilities,  and  exclusive  of  property  by  law 
exempt  from  execution,  and  that  I  have  property  in  the 
State  of  California  liable  to  execution  of  the  value  of 
more  than  four  thousand  dollars. 

C.    O'Connor. 

Subscribed  and  sworn  to  before  me  this  10th  day  of 
]\Iay,  1879. 

Holland  Smith, 
[seal.]  Notary  Public. 

ORDER  TRANSFERRING-  CAUSE. 

In  the  District  Court  of  the  Seventeenth  Judicial  District  of 
the  State  of  California  in  and  for  the  City  and  County  of 
San  Francisco. 
John  H.  Burke,  Plaintiff,  vs.  James  C.  Flood,  John 
W.  IMackay,  James  G.  Fair,  Pacific  Wood,  Lumber, 
AND  Flume  Company,  and  Consolidated  Yirginla. 
Mining  Co^epany,  Defendants. 

A  petition  having  been  filed  by  all  the  defendants  in 
this  cause  on  the  12tli  day  of  May,  1870,  praying  for  the 
removal  thereof  into  the  circuit  court  of  the  United  States, 
Ninth  Circuit,  in  and  for  the  District  of  California,  pursu- 
ant to  the  statutes  of  the  United  States  in  such  cases 
made  and  provided,  and  the  said  petitioner  having  also 
made  and  tiled  with  said  petition  a  bond,  with  good  and 
sufficient  surety,  for  their  entering  in  said  circuit  court  on 
the  first  day  of  its  then  next  session,  a  copy  of  the  record 
in  this  suit,  and  for  paying  all  costs  that  may  be  awarded 
by  the  said  circuit  court,  if  said  circuit  court  shall  hold 
that  their  suit  was  wrongfully  or  imi)roperly  removed 


214  PRECEDENTS. 

thereby.  Xow,  on  motion  of  McAllister  &  Bergin,  at- 
torneys for  all  the  defendants  herein,  it  is  hereby  ordered 
that  this  court  accepts  the  said  bond  and  surety  offered 
by  the  petitioner  (the  defendants),  and  that  this  cause  be 
-wholly  removed  and  transferred  for  trial,  or  further  or 
other  proceedings,  into  the  said  circuit  court  of  the  United 
States,  Xinth  Circuit,  in  and  for  the  District  of  California. 
Dated  June  2nd,  1879. 

S.  B.  McKee, 
District  Judge  of  the  Third  Judicial  District  of  the  State 
of  California,  and  acting  Judge  of  the  District  Court  of 
the  Twelfth  Judicial  District  of  the  State  of  California, 
in  and  for  the  city  and  county  of  San  Francisco. 

NOTICE. 

In  the  Circuit  Court  of  the  United  States  for  the  District  of 

California,  Ninth  Circuit. 
JoHX  H.  BcRKE,  Complainant,  vs.  jAiiES  C.  Flood,  John 

W.  3IACKAY,  JA3IES  G.  FaIR,  PACIFIC  MiLL  AND  MIN- 
ING C03IPANY,  and  Consolidated  Virginia  Mining 
CoDJPANT,  Defendants.    Xo.  2,145. 

Please  take  notice  that  on  29th  day  of  July.  1879,  the 
plaintiff  will  move  ths  court,  at  the  opening  thereof  on 
that  day,  or  as  soon  thereafter  as  counsel  can  be  heard,  to 
remand  said  cause  to  the  Twelfth  District  Court,  from 
whence  it  came,  on  the  ground  that  the  said  circuit  court 
has  no  jurisdiction  in  the  action,  neither  of  the  subject- 
matter  thereof,  nor  of  the  defendants  therein,  nor  of  any 
of  them. 

Said  motion  will  be  based  on  the  papers  on  file  in  the 
cause. 
July  24th,  1879. 

s.  w.  holliday, 
John  Trehane, 

Attorneys  for  Plaintiff. 
To  Messrs.   McAllister  &  Bergin,  Defendants'  Attor- 
neys. 


CUMMINGS   VS.    AXDERSOX.  215 

ORDER  REMAXDIXG  CAUSE. 

John   H.    Burke    et  al.  vs.  James  C.  Flood  et  al. 
No.  2,144. 

This  cause,  coining  on  this  day  for  further  argument 
upon  the  motion  to  remand  this  cause  to  the  district  court 
of  the  Twelfth  Judicial  District,  S.  W.  Holliday,  Esq., 
appearing  on  behalf  of  said  motion  and  complainants,  and 
Curtis  J.  Hillyer,  Esq.,  on  behalf  of  the  defendants  and 
against  said  motion,  was  argued  and  submitted  to  the 
court  for  consideration  and  decision;  and  the  same  having 
been  duly  considered,  it  is  ordered  that  said  motion  be 
and  the  same  hereby  is  granted,  and  the  cause  is  hereby 
remanded  to  the  Superior  Court  of  the  city  and  county  of 
San  Francisco.  On  motion  of  Hall  McAllister,  Esq.,  on 
behalf  of  defendants,  it  is  ordered  that  a  stay  of  i)roceed- 
ings  herein  be  granted  for  the  period  of  twenty-four 
hours. 

Jan.  14th,  1880. 


CuMMiNGS  VS.  Anderson. 

[Eesident  vs.  Non-resident.] 

PETITION  AKD  ORDER  REMOVING  CAUSE. 

In  the  Superior  Court  of  the  Cittj  and  County  of  San  Fran- 
cisco, State  of  California,  Department  6. 

Daniel  Cummln-gs,  Plaintiff,  vs.  John  Anderson,    De- 
fendant.    No.  5,022. 

The  petition  of  John  Anderson,  the  above-named  de- 
fendant, shows  to  the  court  as  follows : 

That  the  above  suit  was  begun  against  your  petitioner 
John  Anderson,  in  the  Superior  Court  of  the  city  and 
county  of  San  Francisco,  State  of  California,  by  the  filing 
of  a  complaint  and  the  service  of  a  summons  and  copy  of 
the  complaint  therein,  on  the  26th  day  of  August,  1881. 


216  PRECEDENTS. 

That  your  petitioner  has  not  yet  filed  his  answer,  but 
that,  as  to  your  petitioner,  said  cause  is  now  pending. 
That  said  cause  has  not  been  tried,  and  that  this  is  the 
lirst  term  of  said  Sui^erior  Court  at  which  the  same  could 
bj^  any  probability  be  tried. 

That  at  the  time  said  suit  was  begun,  and  at  the  present 
time,  the  plaintiff  was  and  is  a  citizen  and  resident  of  the 
State  of  California,  and  the  defendant  John  Anderson 
was  and  is  a  citizen  and  resident  of  the  State  of  New  York, 

That  the  matters  in  dispute  in  said  suit,  and  for  which 
said  suit  is  brought,  exceed  the  sum  of  five  hundred 
(.?500)  dollars,  exclusive  of  costs. 

And  the  defendant  hereby  offers  John  Rosenfeld  and 
B.  Speier,  of  the  city  and  county  of  San  Francisco,  State  of 
California,  as  sureties  for  his  entering  in  the  circuit  court 
of  the  United  States  for  the  district  wherein  said  suit  is 
pending,  on  the  first  day  of  the  next  session  of  said  court, 
or  before,  a  copy  of  the  record  in  said  suit,  and  for  paying 
all  costs  that  may  be  awarded  by  said  circuit  court,  if  said 
court  should  hold  that  said  suit  was  wrongfully  or  im- 
properly removed  thereto;  and  also  for  his  appearing  and 
entering  special  bail  in  such  suit,  if  special  bail  was 
originally  requisite  therein;  and  for  his  complying  in  all 
respects  with  the  provisions,  in  the  premises,  of  the  Act  of 
Congress  of  the  United  States,  passed  March  3rd,  1875, 
entitled,  "An  Act  to  determine  the  jurisdiction  of  circuit 
courts  of  the  United  States,  and  to  regulate  the  removal 
of  causes  from  State  courts,  and  for  other  purposes." 

Wherefore  defendant  prays  this  honorable  court  that 
said  case  be  removed  into  the  circuit  court  of  the  United 
States,  Xinth  Circuit,  District  of  California,  and  that  this 
court  proceed  no  farther  in  the  premises. 

JOHX  ANDERSON. 

W.  H.  L.  Barnes, 

Attorney  for  Defendant. 


cummings  vs.  anderson.  217 

State  of  California,  | 

City  and  County  of  San  Francisco.  )  ^^" 

Jolin  Anderson,  being  duly  sworn,  deposes  and  says  that 
he  is  the  above-named  petitioner  in  the  above-entitled  ac- 
tion; that  he  has  read  the  foregoing  petition  subscribed  by 
him,  and  knows  the  contents  thereof,  and  that  the  same  is 
true  of  his  own  knowledge,  except  as  to  the  matters  therein 
stated  on  information  and  belief,  and  as  to  those  matters 
that  he  believes  it  to  be  true. 

John  Anderson. 
Subscribed  and  sworn  to  before  me  this  29th  day  of 
August,  1881. 

William  Habney, 
[seal.]  Notarrj  Public. 

UXDERTAKIXG. 

Know  all  men  by  these  presents,  that  I,  John  Anderson, 
A  citizen  and  resident  of  the  State  of  New  York,  as  prin- 
cipal, and  John  Eosenfeld  of  the  city  and  county  of  San 
Francisco,  State  of  California,  and  B.  Speier  of  the  same 
place,  as  sureties,  are  jointly  and  severally  held  and 
firmly  bound  unto  Daniel  Cummings  of  the  city  and 
county  of  San  Francisco,  State  of  California,  in  the  sum 
of  five  hundred  (S500)  dollars,  for  which  well  and  truly  to 
be  paid  unto  the  said  Daniel  Cummings,  his  heirs,  exec- 
utors, administrators,  and  assigns,  we  bind  ourselves,  our 
heirs,  executors,  administrators,  successors,  and  assigns, 
firmly  by  these  presents.  Sealed  with  our  seals,  and  dated 
this  29th  day  of  August,  A.  D.  1881. 

The  condition  of  this  obligation  is  such  that  if  the  said 
John  Anderson,  defendant  in  a  suit  now  pending  in  the 
Superior  Court  of  the  city  and  county  of  San  Francisco, 
State  of  California,  shall  enter  in  the  circuit  court  of  the 
United  States  for  the  Ninth  Circuit,  District  of  California, 
on  the  first  day  of  the  next  session  thereof,  a  copy  of  the 
record  in  said  suit;    and  shall  pay  all  costs  that  may  be 

awarded  by  said  circuit  court,  if  said  court  shall  hold  that 
Desty  Removal.— 19 


218  PRECEDENTS. 

said  suit  was  wrongfully  and  improperly  removed  tliereto; 
and  shall  also  then  appear  and  enter  special  bail  in  said 
suit,  if  special  bail  be  requisite  therein  ;  and  shall  enter 
appearance  of  said  John  Anderson  in  said  court — then  this 
obligation  to  be  void;  and  otherwise  to  remain  in  full 
force  and  effect. 

In  witness  whereof  the  said  obligors  have  hereunto  set 
their  hands  and  seals  this  29th  day  of  August,  A.  D.  1881. 
John  Anderson.        [seal.] 
John  Rosenfeld.      [seal.] 
B.  Speier.  [seal.] 

State  of  California,  } 

City  and  County  of  San  Francisco.  |  ^^• 

On  the  fourteenth  day  of  October,  A.  D.  one  thousand 
eight  hundred  and  eighty-one,  before  me,  William  Har- 
ney, a  notary  jDublic  in  and  for  said  city  and  county, 
residing  therein,  duly  commissioned  and  sworn,  j)erson- 
ally  appeared  John  Rosenfeld  and  B.  Speier,  known  to 
me  to  be  the  persons  described  in,  whose  names  are  sub- 
scribed to,  and  who  executed  the  within  instrument,  and 
they  duly  acknowledged  to  me  that  they  executed  the 
same. 

In  witness  whereof  I  have  hereunto  set  my  hand  and 
affixed  my  official  seal,  at  my  office,  in  the  city  and  county 
of  San  Francisco,  the  day  and  year  last  above  written. 

William  Harney, 
[seal.]  notary  Public. 

ORDER  OF  REMOVAL. 

Li  the  Superior  Court  of  the  City  and  County  of  San  Fran- 
cisco, State  of  California,  Department  6. 

Daniel  Cummings,  Plaintiff,  vs.  John  Anderson,  Defend- 
ant.   No.  5,022. 
On  the  pleadings  and  proceedings  herein,  and  on   the 
petition  and  bond  filed  herein  by  the  defendant  John 
Anderson,  under  the  i^ro visions  of  an  Act  of  the  Congress 


CUMMENGS  VS.   ANDERSON.  219 

of  the  United  States,  passed  March  3rd,  1875,  entitled, 
"An  Act  to  determine  the  jurisdiction  of  circuit  courts  of 
the  United  States,  and  to  regulate  the  removal  of  causes 
from  State  courts,  and  for  other  purposes,"  and  on  motion 
of  W.  H.  L.  Barnes,  Esq.,  of  counsel  for  defendant,  it  is 
ordered  that  the  security  offered  by  the  said  defendant 
John  Anderson  be  approved,  and  that  the  State  court 
proceed  no  farther  in  this  cause,  and  that  this  cause  be 
removed  into  the  circuit  court  of  the  United  States  for  the 
Ninth  Circuit,  State  of  California. 
Dated  this  17th  day  of  October,  1881. 

M.  A.  Edjviunds,  Judge. 

NOTICE    OF    FILING  TRANSCRIPT    OF    RECORD. 

In  the  Circuit  Court  of  the  United  States  for  the  Ninth  Cir- 
cuit, District  of  California. 

Daniel  Cummings,  Plaintiff,   vs.  John   Anderson,  De- 
fendant. 

To  Messrs.  D.  Sullivan  and  W.  G.  Holmes,  Attorneys 

for  Plaintiff. 

Dear  Sir — You  will  please  take  notice  that  on  the  17th 
day  of  October,  A.  D.  1881,  by  an  order  of  the  Superior 
Court  of  the  city  and  county  of  San  Francisco,  State  of 
California,  this  cause  was  duly  transferred  to  the  circuit 
court  of  the  United  States  for  the  Ninth  Circuit,  District 
of  California,  and  that  on  the  1st  day  of  November,  A.  D. 
1881,  a  transcript  of  the  record  in  said  case  was  filed  in 
said  circuit  court. 

Yours,  etc., 

W.  H.  L.  Barnes,  Def'ts  Att'y. 

San  Francisco,  November  2nd,  1881. 


220  PRBCEDEXTS. 

flALSTON"  VS.    SbQARON", 

[Resident  plaintiff  vs.  non-resident  defendant  and  resident  defendant 
who  lias  disclaimed  all  interest  in  the  action.] 

PETITIOX  TO  REMOVE  CAUSE,   UNDERTAKING 
AND  ORDER. 

In  the  Superior  Court  of  the  City  and  County  of  San  Fran- 
cisco, State  of  California. 

Lizzie  F.  Ralston,  Plaintiff,  vs.  Wzlliam  Sharon  and 
Alexander  D.  Sbaron,  Defendants. 

The  petition  of  William  Sharon,  one  of  the  above-named 
defendants,  shows  to  the  court  as  follows: 

That  the  above  suit  was  begun  against  your  petitioner, 
William  Sharon  and  Alexander  D.  Sharon,  in  the  Superior 
Court  of  the  city  and  county  of  San  Francisco,  State  of 
California,  by  the  filing  of  a  complaint  and  the  service  of 
a  summons  and  copy  of  the  complaint  therein,  on  the 
11th  day  of  October,  1880.  That  the  defendant  Alexander 
D.  Sharon  tiled  his  answer  in  said  cause  on  the  twenty- 
fourth  day  of  November,  1880.  That  your  petitioner  has 
not  yet  filed  his  answer;  but  that,  as  to  your  petitioner, 
said  cause  is  now  j)ending  on  his  motion  to  strike  out 
portions  of  the  complaint  herein;  that  said  cause  has  not 
been  tried,  and  that  this  is  the  first  term  of  said  Superior 
Court  at  which  the  same  could  by  any  probability  be  tried. 

That  at  the  time  said  suit  was  begun,  and  at  the  present 
time,  the  plaintiff  was  and  is  a  citizen  and  resident  of  the 
State  of  California,  and  the  defendant  William  Sharon 
was  and  is  a  citizen  and  resident  of  the  State  of  Nevada; 
and  that  the  said  defendant  Alexander  D.  Sharon  was 
and  is  a  citizen  and  resident  of  the  State  of  California. 

That  the  matters  in  dispute  in  said  suit,  and  for  which 
said  suit  is  brought,  exceeds  the  sum  of  five  hundred  dol- 
lars, exclusive  of  costs.  That  the  defendant  Alexander 
D.  Sharon  has  no  interest  in  said  action  or  the  matters  in 
dispute  therein,  or  in  any  of  the  property  therein  men- 


RALSTON  VS.   SHARON.  221 

tioned,  and  has  filed  bis  answer  disclaiming  any  interest 
of  any  name  or  nature  in  the  same,  or  in  the  property 
described  therein,  and  the  same  is  wholly  and  solely  the 
property  of  the  defendant  William  Sharon. 

And  the  defendant  hereby  offers  James  H.  Dobinson 
and  Robert  F.  Morrow,  of  the  city  and  county  of  San 
Francisco,  State  of  California,  as  sureties  for  his  entering 
in  the  circuit  court  of  the  United  States  for  the  district 
wherein  said  suit  is  pending,  on  the  first  day  of  the  next 
session  of  said  court,  or  before,  a  copy  of  the  record  in 
the  said  suit,  and  for  paying  all  costs  that  may  be  awarded 
by  said  circuit  court,  if  said  court  should  hold  that  said 
suit  was  wrongfully  or  improperly  removed  thereto,  and 
also  for  his  appearing  and  entering  special  bail  in  such 
suit,  if  special  bail  was  originally  requisite  therein  ;  and 
for  his  complying  in  all  respects  with  the  provisions,  in 
the  premises,  of  the  Act  of  Congress  of  the  United  States, 
passed  March  3rd,  1875,  entitled,  "An  Act  to  determine 
the  jurisdiction  of  circuit  courts  of  the  United  States,  and 
to  regulate  the  removal  of  causes  from  State  courts,  and 
for  other  purposes." 

Wherefore,  defendants  pray  this  honorable  court  that 
said  case  be  removed  into  the  circuit  court  of  the  United 
States,  Ninth  Circuit,  District  of  California,  and  that  this 
court  proceed  no  farther  in  the  premises. 

Wm.  Shakon, 
Lloyd,  Xewlands,  &  Wood, 

AWfs  for  Deft  Wm.  Sharon. 

State  of  California,  / 

City  and  County  of  San  Francisco.  )  ^^• 

William  Sharon,  being  duly  sworn,  deposes  and  says 
that  he  is  the  above-named  petitioner,  and  one  of  the  de- 
fendants in  the  above-entitled  action;  that  he  has  read 
the  foregoing  petition  subscribed  by  him,  and  knows  the 
contents  thereof,  and  that  the  same  is  true  of  his  own 
knowledge,  except  as  to  the  matters  therein  stated  on 


222  PRECEDENTS. 

information  and  belief,  and  as  to  those  matters  that  he 
believes  it  to  be  true. 

AYm.  Sharon. 

Subscribed  and  sworn  to  before  me,  this  24:th  day  of 
November,  A.  D.  1880. 

John  J.  INIone, 
Court  Commissioner  of  the  cit>j  and  county  of  San  Francisco. 
Indorsed.    Filed  November  24:th,  1880. 

Wm.  a.  Stuart,  Clei'k. 
By  M.  H.  Weed,  Deimty  Clerk. 

UNDERTAKINa  ON  EEMOYAL  OF  CAUSE. 

Know  all  men  by  these  presents,  that  I,  William  Sharon, 
a  citizen  of  the  State  of  Nevada,  as  princij^al,  and  James 
H.  Dobinsou,  of  the  city  and  county  of  San  Francisco, 
State  of  California,  and  Robert  F.  Morrow,  of  the  same 
place,  as  sureties,  are  jointly  and  severally  held  and 
firmly  bound  unto  Lizzie  F.  Ealston,  of  the  city  and 
county  of  San  Francisco,  State  of  California,  in  the  sum 
of  five  hundred  (SoOO)  dollars,  for  which  well  and  truly  to 
be  paid  unto  the  said  Lizzie  F.  Ralston,  her  heirs,  ex- 
ecutors, administrators,  and  assigns,  we  bind  ourselves, 
our  heirs,  executors,  administrators,  successors,  and  as- 
signs, firmly  by  these  presents,  sealed  with  our  seals,  and 
dated  this  18th  day  of  November,  A.  D.  1880. 

The  condition  of  this  obligation  is  such  that  if  the  said 
William  Sharon,  one  of  the  defendants  in  a  suit  now 
pending  in  the  Superior  Court  of  the  city  and  county  of 
San  Francisco,  State  of  California,  shall  enter  in  the  cir- 
cuit court  of  the  United  States  for  the  Ninth  Circuit, 
District  of  California,  on  the  first  day  of  the  next  session 
thereof,  a  copy  of  the  record  in  said  suit,  and  shall  pay 
all  costs  that  may  be  awarded  by  said  circuit  court,  if 
said  court  shall  hold  that  said  suit  was  wrongfully  and 
improperly  removed  thereto ;  and  shall  also  then  appear 
and  enter  special  bail  in  said  suit,  if  special  bail  be  re- 


RALSTOX  r.S.    SHARON.  223 

quisite  thereiu;  and  shall  enter  appearance  of  said  Wil- 
liam Sharon  in  said  court— then  this  obligation  to  be  void; 
and  otherwise  to  remain  in  full  force  and  effect. 

In  -witness  whereof  the  said  obligors  have  hereunto  set 
their  hands  and  seals  this  18th  day  of  November,  A.  D. 
1880. 

William  Sharox.  [seal.] 
Jas.  H.  Doben'sgn.  [seal.] 
R.  F.  Morrow.  [seal.] 

Indorsed.    Filed  November  24th,  1880. 

William  A.  Stuart,  Clerk. 
By  M.  H.  Weed,  Deputy  Clerk. 

ORDER  OF  COURT. 

In  the  Superior  Court,  Clt;/  and  County  of  San  Francisco, 
State  of  California. 

Lizzie  F.  Ralstox,  Plaintiff,  vs.  Williaj^i  Sharon  and 
Alexander  D.  Sharon,  Defendants. 

On  the  pleadings  and  proceedings  herein,  and  on  the 
petition  and  bond  tiled  herein  by  the  defendant  William 
Sharon,  tinder  the  provisions  of  an  Act  of  the  Congress  of 
the  United  States,  passed  March  3rd,  1875,  entitled,  "An 
Act  to  determine  the  jurisdiction  of  circuit  courts  of  the 
United  States,  and  to  regulate  the  removal  of  causes  from 
State  courts,  and  for  other  purposes,"  and  on  motion  of 
W.  H.  L.  Barnes,  Esq.,  of  counsel  for  defendants,  it  is 
ordered  that  the  security  offered  by  the  said  defendant 
William  Sharon  be  approved,  and  that  the  State  court 
proceed  no  farther  in  this  cause,  and  that  this  cause  be 
removed  into  the  circuit  court  of  the  United  States  for  the 
Ninth  Circuit,  State  of  California. 

J.  F.  Sullivan,  Judge. 

November  24th,  1880. 

Indorsed.    Filed  November  24th,  1880. 

William  A.  Stuart,  Clerk. 
By  M.  H.  Weed,  Deputy  Clerk. 


224  precedents. 

Moore  vs.  Menzies. 

[Citizens  vs.  Aliens.] 

PETITIOX  FOR  REMOVAL. 

In  the  Superior  Court  in  and  for  the  County  of  Marin,  State 
of  California. 

Warrex  Duttox  and  A.  D.  Moore,  Plaintiffs,  vs.  James 
D.  Walker,  Thomas  JNIenzies,  and  Henry  D.  Har- 
rison, Defendants.    No.  236. 

The  petition  of  James  D,  Walker,  one  of  the  above- 
named  defendants,  shows  to  the  court  as  follows: 

Tliat  the  above  suit  was  begun  against  your  petitioners, 
James  D.  Walker,  Thomas  Menzies,  and  Henry  D.  Har- 
rison, in  the  Superior  Court  of  the  county  of  Marin,  State  of 
California,  by  the  tiling  of  a  complaint,  and  the  service  of 
a  summons  and  a  copy  of  the  complaint  herein  on  the 
defendants. 

That  your  petitioners  have  not  yet  filed  their  answer, 
but  that,  as  to  your  petitioners,  said  cause  is  now  pend- 
ing, that  said  cause  has  not  been  tried,  and  that  this  is 
the  first  term  of  said  Superior  Court  at  which  the  same 
could  by  any  probability  be  tried. 

That  at  the  time  said  suit  was  begun,  and  at  the  present 
time,  the  plaintiffs  are  citizens  and  residents  of  the  State 
of  California,  and  the  defendants  are  aliens  and  subjects 
of  the  United  Kingdom  of  Great  Britain  and  Ireland;  the 
said  defendant  James  D.  Walker  being  a  resident  of  the 
county  of  Marin,  and  the  said  Thomas  Menzies  and 
Henry  D.  Harrison  residents  of  the  county  of  Alameda, 
State  of  California. 

That  the  matters  in  dispute  in  said  suit,  and  for  which 
said  suit  is  brouglit,  exceeds  the  sum  of  five  hundred 
(500)  dollars,  exclusive  of  costs. 

And  these  defendants  hereby  offer  J.  A.  Jones  and  F. 
R.  Catton,  of  the  city  and  county  of  San  Francisco,  State 


MOORE  VS.   MENZIES.  225 

of  California,  as  sureties  for  their  entering  in  tlie  circuit 
court  of  the  United  States  for  the  district  wherein  said 
suit  is  pending,  on  the  first  day  of  the  next  session  of  said 
court,  or  before,  a  copy  of  tlie  record  in  said  suit,  and  for 
paying  all  costs  that  may  be  awarded  by  said  circuit 
court,  if  said  court  should  hold  that  said  suit  was  wrong- 
fully Qv  improperly  removed  thereto;  and  also  for  their 
appearing  and  entering  special  bail  in  such  suit,  if  special 
bail  was  originally  requisite  therein;  and  for  their  com- 
plying in  all  respects  with  the  provisions  in  the  premises 
of  the  Act  of  Congress  of  the  United  States,  passed  March 
3rd,  1875,  entitled,  "  An  Act  to  determine  the  jurisdiction 
of  circuit  courts  of  the  United  States,  and  to  regulate  the 
removal  of  causes  from  State  courts,  and  for  other  pur- 
poses." 

Wherefore  defendants  pray  this  honorable  court  that 
said  case  be  removed  into  the  circuit  court  of  the  United 
States,  Ninth  Circuit,  District  of  California,  and  that  this 
court  proceed  no  farther  in  the  premises. 

Jas.  D.  Walker. 
W.  H.  L.  Barnes, 

Attorney  for  Defendants. 

State  of  California,  ) 

City  and  County  of  San  Francisco.  |  ^^• 

James  D.  Walker,  being  duly  sworn,  deposes  and  says 
that  he  is  the  above-named  petitioner,  and  one  of  the  de- 
fendants in  the  above-entitled  action;  that  he  has  read 
the  foregoing  petition  subscribed  by  him,  and  knows  the 
contents  thereof,  and  that  the  same  is  true  of  his  own 
knowledge,  except  as  to  the  matters  therein  stated  on  in- 
formation and  belief,  and  as  to  those  matters  that  he 

believes  it  to  be  true. 

Jas.  D.  Walker. 

Subscribed  and  sworn  to  before  me  this  18th  day  of 
February,  A.  D.  1882. 

Geo,  T.  Knox, 
[seal.]  Notary  Public. 


226  PRECEDENTS. 

ORDER  OF   REMOVAL. 

In  the  Superior  Court  in  and  for  the  County  of  Marin,  State 
of  Califorala. 

Warren  Button  and  A.  D.  Moore,  Plaintiffs,  vs.  James 
D.  Walker,  Thomas  Menzies,  and  Henry  D.  Har- 
rison, Defendants.    No.  236. 

On  tlie  pleadings  and  proceedings  herein,  and  on  the 
petition  and  bond  filed  herein  by  the  defendants  in  the 
above-entitled  action  under  the  provisions  of  an  Act  of 
the  Congress  of  the  United  States,  passed  March  3rd,  1875, 
entitled,  "An  Act  to  determine  the  jurisdiction  of  circuit 
courts  of  the  United  States,  and  to  regulate  the  removal 
of  causes  from  State  courts,  and  for  other  purposes,"  and 
on  motion  of  W.  H.  L.  Barnes,  Esq.,  of  counsel  for  de- 
fendants, it  is  ordered  that  the  security  offered  by  the 
said  defendants  James  D.  Walker,  Thomas  Menzies,  and 
Henry  D.  Harrison  be  approved,  and  that  the  State  court 
proceed  no  farther  in  the  cause,  and  that  this  cause  be 
removed  into  the  circuit  court  of  the  United  States  for  the 
Ninth  Circuit,  State  of  California. 

Dated  this  11th  day  of  March,  1882. 

Thos.  J.  Bowers, 

Sup.  Judge. 
UNDERTAIONG. 

Know  all  men  by  these  presents,  that  I,  James  D. 
Walker,  as  principal,  and  J.  A.  Jones  of  the  city  and 
county  of  San  Francisco,  State  of  California,  and  F.  R. 
Catton  of  the  same  place,  as  sureties,  are  jointly  and  sev- 
erally held  and  firmly  bound  unto  William  Dutton  and 
A.  D.  Moore,  of  the  city  and  county  of  San  Francisco, 
State  of  California,  in  the  sum  of  five  hundred  (§500) 
dollars,  for  which  well  and  truly  to  be  paid  unto  the  said 
William  Dutton  and  A.  D.  Moore,  tlieir  heirs,  executors, 
administrators,  and  assigns,  we  bind  ourselves  our  heirs. 


MOORE  VS.    MENZIES.  227 

executors,  administrators,  successors,  aud  assigns  firmly 
by  these  presents. 

Sealed  with  our  seals  and  dated  this  18th  day  of  Feb- 
ruary, A.  D.  1882. 

The  condition  of  this  obligation  is  such  that  if  the  said 
James  D.  Walker,  Thomas  Menzies,  and  Henry  D.  Har- 
rison, defendants  in  a  suit  now  pending  in  the  Superior 
Court  of  the  county  of  Marin,  State  of  California,  shall 
enter  in  the  circuit  court  of  the  United  States  for  the 
Jsinth  Circuit,  District  of  California,  on  the  first  day  of 
the  next  session  thereof,  a  copy  of  the  record  in  said  suit; 
and  shall  pay  all  costs  that  may  be  awarded  by  said  cir- 
cuit court,  if  said  court  shall  hold  that  said  suit  was 
wrongfully  and  improperly  removed  thereto;  and  shall 
also  then  appear  and  enter  special  bail  in  said  suit,  if 
special  bail  be  requisite  therein;  and  shall  enter  appear- 
ance of  said  James  D.  Walker,  Thomas  Menzies,  and 
Henry  D.  Harrison  in  said  court— then  this  obligation  to 
be  void;  and  otherwise  to  remain  in  full  force  and  effect. 

In  witness  whereof  the  said  obligors  have  hereunto  set 
their  hands  and  seals  this  eighteenth  day  of  February, 
A.  D.  1882. 

Jas.  D.  Walker,    [seal.] 
J.  A.  Jones.  [seal] 

F.  R.  Cattox.  [seal.] 

State  of  California,  ) 

City  and  County  of  San  Francisco,  j  ^^• 

On  the  eighteenth  day  of  February,  A.  D.  one  thousand 
eight  hundred  and  eighty-two,  before  me,  Geo.  T.  Knox, 
a  notary  public  in  and  for  said  city  and  county,  residing 
therein,  duly  commissioned  and  sworn,  personally  ap- 
peared James  D.  Walker,  J.  A.  Jones,  F.  R.  Catton, 
known  to  me  to  be  the  persons  described  in,  whose  names 
are  subscribed  to,  and  who  executed  the  within  instru- 
ment, and  they  duly  acknowledged  to  me  that  they 
executed  the  same. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 


228  PRECEDENTS. 

affixed  my  official  seal,  at  my  office  in  the  city  and  county 
of  San  Francisco,  the  day  and  year  last  above  written. 

Geo.  T.  Knox, 
[seal.]  Notain/  Public. 

County  Clerk's  Office,  State  or  Californla., 
County  of  Marin. 
I,  Geo.  W.  Davis,  county  clerk  of  the  county  of  Marin, 
State  of  California,  and  clerk  of  the  Superior  Court,  do 
hereby  certify  that  I  have  compared  the  foregoing  copy 
of  the  original  undertaking  on  removal  of  cause  in  the 
within-entitled  cause,  and  of  the  indorsements  thereupon, 
with  the  original  records  of  the  same  remaining  in  this 
office,  and  that  the  same  is  a  correct  copy  thereof,  and  of 
the  whole  of  said  original  record. 

Witness  my  hand  and  the  seal  of  said  court  this  14th 
day  of  March,  1882. 

Geo.  W.  Davis,  Clerk. 
[seal.]  By  Daniel  T.  Taylor,  Deputy  Clerk. 

NOTICE  OF  ke:moval. 

United  States  of  A^ierica. 

Circuit  Court  of  the  United  States  for  the  Ninth  Circuit, 
District  of  California. 

"Warren  Dutton  and  A.  D,  Moore,  Plaintiffs,  vs.  James 
D.  Walker,  Thomas  Menzies,  and  Henry  D.  Har- 
rison, Defendants. 

To  Hosmer  p.  McKoon,  Esq.,  Plaintiffs'  Attorneys. 

You  will  please  take  notice  that  on  Tuesday,  the  llth 
day  of  March,  1882,  by  an  order  of  the  Superior  Court  of 
the  county  of  Marin,  State  of  California,  this  cause  was 
duly  transferred  to  the  circuit  court  of  the  United  States 
for  the  Ninth  Circuit,  District  of  California. 

W.  H.  L.  Barnes, 

Defendants'  Attorney. 
San  Francisco,  March  16th,  1882. 


TABLE   OF   OASES. 


The  small  superior  figures  correspond  with  the  reference  figures  in 
the  sections,  and  show  the  sentences  to  which  the  cases  are  cited. 


Abercrombie  c.  Dupins,  1  Cranch,  343,  §§  11  b  3;  17  b  si. 
Ableman  v.  Booth,  21  How,  506;  S.  C.  3  Wis.  1,  §§  1  e  2;  1 

f  2. 

Abranches  r.  Schell.  4  Blatchf.  256,  §§  11  ll  W;  17  b  5;  27 

d3,  e;  27  e  2,  \ 
Adams  v.  Board,  McCalion,  235,  §  1  d  i^. 
Adams  v.  Jones,  12  Peters,  207,  §  23  a  ic. 
Adams  Express  Co.  v.  Trego,  35  Md.  47,  §  11  f  u,  ^^. 
Akerly  v.  Vilas,  2  Biss.  110;  S.  C  2  Abb.  284,  §§  4  c  S;  7  b 

22;   10  m  5;  11  g  15;   11  i  2 ;   H  m  5,  S;   14  c  1,  2,  4. 

Akerlv  v.  Vilas,  24  Wis.  165,  §  11  f  2,  20. 

Alabama  Gold  L.  Ins.  Co.  v.  Girardy ,  9  Fed.  Eep.  142,  §  1 

ri6. 
Albright  v.  Empire  Trans.  Co.  18  Alb.  L.  J.  313,  §  2  c  6,  7. 
Aldrich  v.  Crouch,  10  Fed.  Eep.  305,  §§  7  b  20;  11  ds,  24;  H 

e  10. 
Allegheny  Co.  v.  Cleveland  &  P.  E.  Co.  51  Pa  St.  228,  §10 

k^,  20. 
Allen  V.  Blunt.  1  Blatchf.  480,  §§  1  g  12,  iS;  2  a2.  s. 
Allen  r.  Eyerson, 2  Dill.  501,  §§  6  ai* ;  6  b  4;  10  q  i;  11  b 

a5 
Allin  r.  Eobinson,  1  Dill.  119,  §§  6  C  S;  10  c  - ;  10  m  w. 
American  Bible  Soci.  v.  Grove,  101  U.  S.  610,  §§  4  c  ";  7  a 

2;  7bi;  10  j^  8;  10  pi-;  11  d  i;  11  e  2:^;  11  g  6. 
Amer.  Ins.  Co.  r.  Canter,  1  Peters,  511,  §  1  a^. 
Amer.  U.  Tel.  Co.  v.  Bell  Telephone  Co.  1  Fed.  Eep.  698, 

§  14  d  15. 
Ames  V.  Colorado  Cent.  E.  E.  Co.  4  Dill.  251;  S.  C.  4  Cent. 

L.  J.  199;  9  Ch.  L.  N.  132,  §§  4  e  i;  10  g  6;  11  d  i;  17 

Amory  v.  Amory,  96  U.  S.  186;  36  N.  Y.  Sup.  520,  §§  4  d  i4, 

13;  10  q  ',  6,  5;  11  b  1«,  10,  S;  18  a  11. 
Anderson,  Ex  parte,  3  Woods,  124,  §§  11  b^;  27  bi2;  27 

d^. 
Anderson  v.  Gerding,  3  Woods,  487,  §§  1  d  i6;  10  o^'. 
Anderson  r.  Manuf .  Bank,  14  Abb.  Pr.  436,  §  10  1 2. 
Destt  eemoval.— so. 


230  TABLE   OF   CASES. 

Anderson  v.  Shaffer,  10  Fed.  Eep.  266,  §§  1  qS;  2  b2,  s. 
Andrews,  Ex  parte,  40  Ala.  639,  §§  6  b  i,  2;  6  C  lO;  10  C  5; 

10  j  w. 
Andrews  v.  Garrett,  1  Flippen,  445,  §§  4  a 2;  10  g  i. 
Andrews  r.  Garrett,  3  Cent.  L.  J.  797;  S.  C.  Ch.  L.  N.  132, 

§§10g4;  10  ge. 
Andrews  v.  Smith,  5  Fed.  Eep.  833,  §  1  ris. 
Anonymous,  1  Dill  298,  note,  §  7  bs,  9. 
Anthony  v.  Carroll,  9  Off.  Gaz.  199,  §  1  g  15. 
Arapahoe  Co.  v.  Kansas  Pac.  R.  Co.  4  Dill.  277,  §§  10  k"; 

10  ml,  21;  10  111;  10  oi,  is. 
Arjo  V.  Mouteiro,  1  Caines,  248,  §  5  a  H 
Aroma,  Town  of,  v.  Auditor,  2  Fed.  Rep.  33,  §  10  m2o. 
Atchison  v.  Morris,  11  Fed.  Eep.  682,  §  18bi5. 
Atlas  Mut.  Ins.  Co.  v.  Byrus,  45  Ind.  133,  §§  1  k  i2;  17  g  \ 
Atlee  V.  Potter,  4  Dill.  559,  §  11  di3,  i4. 
Att.-Gen.  v.  Eumford  Wks.  9  Off.  Gaz.  1062,  §  1  gi3. 
Aurora  v.  West,  (>  Wall.  139;  S.  C.  25  Ind.  148,  §  4  b2i. 
Ayer  v.  Carver,  17  How.  595,  §  10  b  is. 
Ayers  v.  Chicago,  101  U.  S.  184,  §§  4  c  lO;  10  n 6;  17  g  i. 
Ayres  v.  Western  R.  R.  Corp.  32  How.  Pr.  351;  S.  C.  48 

Barb.  132,  §§  5  a^i ;  10  U. 
Babbitt  v.  Clark,  2  Morr.  Trans.  606,  §§  7  b20;  11  d^;  17 

Bailey  i;.' Amer.  Cent.  Ins.  Co.  13  The  Reporter,  571,  §  10 

13. 

Bailey  v.  New  York  Sav.  B'k,  18  Blatchf.  77:  S.  C.  2  Fed. 

Rep.  14,  §  10  n  12,  3-2. 
Baird  v.  Byrne,  3  Wall.  Jr.  1,  §  1  m  c,  o,  10. 
Baker  v.  Peterson,  4  Dill.  562,  §§  10  g^;  17  ds. 
Baker  v.  Portland,  5  Sawv.  566,  §1  f  is. 
Baker  v.  Riddle,  Bald.  394,  §  1  c3,  I6. 
Baltimore  &  O.  R.  Co.  v.  Carv,  28  Ohio  St.  208,  §§  1  k^; 

10  k  4,  6^  12. 
Bait.  &  O.  R.  Co.  V.  Harris,  12  Wall.  65,  §  10  k25. 
Bait.  &  Ohio  R.  R.  Co.  v.  Koontz,  3  Morr.  Tr.  34,  §  1  ku. 
Bait.  &  O.  R.  R.  Co.  v.  New  Albany  R.  R.  Co.  53  Ind.  597, 

§7b2,  6. 

B'k  of  Omaha  v.  Douglas  Co.  3  Dill.  298,  §  1  ki3. 
Bank  v.  Deveaux,  5  Cranch,  61,  §§1  aS;  1  k  3,  5;  1  lis. 
Bank  v.  Roberts,  4  Conn.  323, 1  f  5;  1 1 1, 
Bank  v.  Slocomb,  14  Peters,  60,  ^§  1  j  H;  1  k  3. 
Bank  v.  Turnbull,  16  Wall.  190,  §  10  bs. 
Bank  of  U.  S.  v.  Daniel,  12  Peters,  32,  §  4  bi7. 
Bank  of  U.  S.  v.  Green,  6  Peters,  26,  §  23  a  10. 
Bank  of  U.  S.  v.  Martin,  5  Peters,  479,  §  1 113. 
Bank  of  U.  S.  v.  Northumberland  B'k,  4  Wash.  0.  C.  108, 
§111. 


TABLE   OF   CASES.  231 

Bank  v.  Wistar,  2  Peters,  318,  §  1  p  i^. 

Bantou  r.  Wilson.  4  Tex.  400.  §  1  ai. 

Barber  v.  Barber,  21  How.  582,  §  1  c  i3. 

Barbery.  St.  Louis  etc.  R.  II.  Co.  43  Iowa,  323,  §§  7  a^; 

11  d2;   llf22. 

Barclay  i'.  Levee  Comm'rs,  1  AYoods,  254,  §§  1  k^,  16;  10 

11;  11  s^;  11m  9,  11. 
Barnesville  &  Moorhead  R.  Co.,  In  re,  4  Fed.  Rep.  10,  §§  14 

bi;  18  c^. 
Barnett  v.  Butterworth,  11  How,  GG9,  §  1  c^. 
Barney  v.  Baltimore,  G  Wall.  280,  §§  1  j  '•';  1  qS;  5  b  3;  10 

n^:  10  pis. 
Barney  v.  Globe  Bank.  5  Blatclif.  107,  §§  1  p^J,  s^;  Ik^; 

10  a^  2,;  10  cw;  10  k  2;  10  IS;  11  g^;  15  aC;  15 
b2;  16  a  4. 

Barney  v.  Latham,  103  U.  S.  205;  S.  C.  11  The  Reporter, 
721;  2  Morr.  Trans.  G38,  §§  6  note  i;  10  i  i*^;  10  m  g, 

13;  10  11  21;   10  O  1,  3,  T,  IG;   10  q  1'. 

Barrow  v.  Hunton,  99  U.  S.  80,  §§  10  a  19;  10  b^. 
Barrowcliffe  y.  La  Caisse  Generale,  58  How.  Pr.  131,  §§  10 

d2;  10j9. 

Bates  V.  Days,  11  Fed.  Rep.  529.  §§  10  ii3,  i3;  10  ni5. 
Bauman  r.  Union  Pacif.  R.  R.  Co.  3  Dill.  337,  §  24  a  9. 
Bean  v.  Smith,  2  Mason,  252,  §  1  p  36. 
Beardsley  v.  Torrey,  1  Wash.  C.  C.  286,  §§  5  b  i,  C;  6  C^; 

11  g  5;  18  a2 

Beebe  v.  Armstrong,  11  Mart.  440,  §  11  b  i*. 

Beebe  v.  Cheeney,  11  The  Reporter,  3G0;  S.  C.  5  Fed.  Rep. 

388,  §§10ji;  lib 24;  11  c  w. 
Beecher  v.  Gillett,  1  Dill.  308,  §  10  c  s. 
Beede  v.  Cheeney,  5  Fed.  Rep.  388;  S.  C.  11  The  Reporter, 

360,  §§17ai;  17  b". 
Beery  v.  Chicago,  R.  L  &  P.  R.  Co.  64  Mo.  533,  §§  11  g  15; 

Hill;  10e«. 
Beerv  v.  Irick,  22  Gratt.  484,  §§  5  bi;  10  j  3;  10  pi";  11 

f25;  11  g  3. 
Bell  v.  Dix,  49  N.  Y.  232,  §§  11  g  lO;  11  j  5;  14  d^;  18  C 

2;  25  C8. 
Benchley  c.  Gilbert,  8  Blatchf.  147,  §§  27  bH;  27  d^. 
Benedict  v.  Williams,  10  Fed.  Rep  208,  §  18  c  n. 
Bennett  v.  Bennett,  Deady,  300,  §  1  a  3. 
Bennetts.  Butterworth,  8 How.  124,  §  1  d  5. 
Bennington  v.  Park,  50  Vt.  178, 1  o  •*. 
Berger  v.  Douglas  Co.  5  Fed.  Rep.  23,  §§  lOf  i2;  101  is ; 

18  a  1". 
Berlin  v.  Jones,  1  Woods,  638,  §  11  b  19. 
Berrian  v.  Chetwood,  9  Fed.  Rep.  678,  f§  10  a20;  10  i  2. 
Besser  v.  Munford,  63  Ga.  446,  §  10  b  ">. 


L'oli  TABLE  OF  CASES. 

Best  V.  K  Y.  Life  Ins.  Co.  2  Cin.  Rep.  329,  §§  11  b  30;  H 

Biddle,  Ex  parte,  2  Mason,  472,  §  1  c  lo. 

Bigelow  V.  Forrest,  9  Wall.  339,  §§  10  c  7;  25  c  i^. 

Bills  V.  N.  O.  St.  L.  etc.  R.  R.  Co.  13  Blatchf.  227,  §§  11  k 

8;  11  mS;  15  bS;  18  b2 
Bingham  v.  Cabbot,  3  Dall.  19,  382,  §  11  b3 
Bird  V.  Murray,  Cole.  &  C.  Cas.  63,  §  5  ai4. 
Bird's  Ex'rs  v.  Cockrem,  2  Woods,  32,  §  24  a  6. 
Bixby  V.  Couse,  8  Blatchf.  73,  §§  6  b3,  4;  lo  j  7,  lOj  iq  p23. 
Black  V.  Thorne,  10  Blatchf.  66,  §  36  a  2. 
Blackwell  v.  Brown,  1  Fed.  Rep.  351,  §  11  ei3. 
Blair  v.  West  Point  etc.  Co.  7  Neb.  146,  §§  11  b 8;  11  gi5; 

llhis,  H^2. 

Blake  v.  McKim,  103  U.  S.  336,  §§  6  note  i;  10  i  3;  10  n 

1,2;   10  O  3. 

Blanchard  v.  Dwight,  12  Wend.  192,  §  11  c6 

Blanchard  v.  Sprague,  1  Cliff.  288.  §  1  gS;  18  a 20. 

Blank  v.  Manuf.  Co.  3  Wall.  Jr.  196,  §  1  g23. 

Blight  V.  Fisher,  Peters  C.  C.  41,  §  2  a^. 

Bliss  V.  Rawson.  43  Ga.  181,  §§  7  b-i;  10  p  w,  8. 

Bliven  v.  X.  E.  Screw  Co.  3  Blatchf.  Ill,  §§  1  k3;  10  b2; 

10  k  27;    11  g  5 

Bloomer  v.  Gilpin,  4  Fish.  Pat.  Cas.  50,  §  1  g^  i". 

Board  of  Foreign  Missions  v.  McMaster,  4  Am.  Law  Reg. 

529,  §  10  p  1^. 
Board  v.  Kansas  Pac.  R.  Co.  4  Dill.  277,  §§  7  a2;  10  o26, 7. 
Bobyshall  v.  Oppenheimer,  4  Wash.  C.  C.  482,  §  1  p". 
Boggs  V.  Willard,  3  Biss.  256;  S.  C.  70  111.  315,  §  11  f  27. 
Bollman,  Ex  parte,  4  Cranch,  75,  §  1  n  i*^. 
Bonaparte  v.  Camden  &  A.  R.  R.  Co.  Bald.  205,  §§  1  k^; 

1  m  17,  14. 
Bonnafee  v.  Williams,  3  How.  574,  §  1  p  is. 
Boom  Co.  V.  Patterson,  98  U.  S.  403,  §  10  c  12. 
Boone  v.  Iowa  &  M.  Const.  Co.  10  Fed.  Rep.  401,  §  10  o  20. 
Boucicault  v.  Hart,  13  Blatchf.  47,  §  1  h  -*. 
Boudurant  v.  Watson,  103  U.  S.  281,  §§  10  a22,  23;  H  bu. 
Bowen  v.  Chase,  7  Blatchf.  255,  §§  7  b-,  '■>,  is,  u,  17 ;  H  b35. 
Bo  wen  v.  Kendall,  23  The  Reporter,  538,  §  14  b^. 
Boyce  v.  Grundy,  3  Peters,  215,  §  1  C 12. 
Boyd  V.  Bradsheet,  10  Fed.  Rep.  406,  §  17  b9. 
Bradford  v.  Jenks,  2  McLean,  130,  §  1  p  i". 
Bradley  v.  Rhines,  8  Wall.  393,  §  1  p^o. 
Bradley  r.  Williams,  3  Hughes,  26,  §  1  p  3o. 
Bradstreet,  Ex  parte,  7  Peters,  634.  §  1  di^. 
Bragg  V.  Tibbs,  44  Ga.  294,  §  11  li  10. 
Breedlove  v.  Kicolet,  7  Peters,  413,  §  1  ini4. 
Brian  v.  Ponder,  23  Ga.  480,  §  18  a  n. 


TABLE  OF   CASES.  233 

Brice  v.  Somers.  1  Flippen,  574,  §  11  fw  24. 

Bridges  v.  Sheldon,  7  Fed.  Rep.  41,  §  1  ri. 

Briges  v.  Sperrv,  95  U.  S.  401,  §  11  k  9. 

Briggs  V.  French,  2  Sum.  251,  §§  1  o  i,  ";  1  pi2. 

Bright  V.  Milwaukee  B.  R.  Co.  1  Abb.  K  C.  14:  criticised 

in  4  Cent.  L.  J.  492;  S.  C.  14  Blatch.  366,  §§  11  d22;  11 

e23;  17  c2. 
Bristol  V.  Chapman,  34  How.  Pr.  140,  §§  5  a.^;  11  a  9. 
British  Prisoners,  The,  1  Wood.  &  M.  66,  §  1  b  -. 
Broadnax  v.  Eisner,  13  Blatchf.  366,  §§11  e  iS;  14  de,  T; 

17  c  2. 

Broadway  Bank  v.  Adams,  130  Mass.  431,  §  10  a  i^. 
Brobst  r.  Brobst,  4  Wall.  2,  §  23  a  ". 
Broderick's  Will,  21  Wall.  503,  §  1  c  ii>. 
Brooks  V.  Bailey,  9  Fed.  Rep.  438,  §  1  j  i. 
Brooks  V.  Farwell,  4  Fed.  Rep.  166,  §§  2  a^;  18  b  6,  4. 
Brooks  r.  PhcEnix  Mut.  L.  Ins.  Co.  16  Blatchf.  182,  §§  4  b 
23;  18  b  12 

Brooks  v.  Stolley,  3  McLean,  523,  §  1  g  *,  lo. 

Browel  v.  T.  &  B.  R.  Co.  3  Fed.  Rep.  761,  §  2  C  7. 

Brown  v.  Crippen,  4  Hen.  &  M.  173,  §§  11  c  4,  14;  11 16; 

18  a  5. 

Brown  v.  Keene,  8  Peters,  112,  §§  1  m^;  lib  3. 
Browne  v.  Arbuncle,  1  Wash.  C.  C.  484,  §  1  o^. 
Browne  v.  Browne,  1  Wash.  C.  C.  429,  §  1  o^. 
Browne  v.  Strode,  5  Cranch,  303,  §§  1  mi,  5;  5  b  12, 
Brownell  v.  Trov  &  B.  R.  R.  Co.  3  Fed.  Rep.  761,  §  1  k  n. 
Brownell  v.  Gordon,  1  McAlL  207,  §  17  c^. 
Bruce  v.  Gibson,  9  Fed.  Rep.  540.  §  10  j  1,  2. 
Bryan  V.  Ponder,  23  Ga.  480,  §§  5  b  1,  15;  n  b  2s. 
Bryant  v.  Rich.  106  Mass.  180;  S.  C.  21  Wall.  41,  §§  5  b  S; 

10  j  7,10;  10  1123;   11  f  21. 

Bryant  v.  Scott,  67  N.  C.  391.  §§  7  b  2i;  10  j  S;  10  p  9. 

Buckman  v.  Palisades  Land  Co.  1  Fed.  Rep.  367,  §  10  j  6. 

Buckner  v.  Finley,  2  Peters,  586,  §  1  p  i^. 

Buford  V.  Strother,  10  Fed.  Rep.  406,  §§  10  h  5;  17  b  9,  lo. 

Bullard  v.  Bell,  1  Mason,  243,  §  1  p  i^  i^. 

Burch  V.  Davenport  &  St.  P.  R.  Co.  46  Iowa,  449.  §§  6  note 
2;  6  b  11;  10  j  10;  10  11 1,  3;  10  o  i.  ';  11  h  6. 

Burdick  v.  Hale,  7  Biss.  96.  §§  7  a2;  liB  a  9. 

Burdick  v.  Peterson,  6  Fed.  Rep.  840;  S.  C.  11  The  Re- 
porter, 829,  §§  10  o  1^;  11  b  2^;  11  e  ». 

Burke  v.  Flood,  6  Saw  v.  220;  S.  C.  1  Fed.  Rep.  541;  S.  C.  4 
Pac.  C.  L.  J.  501,  §^  4  c  10;  10  j  3;  10  o  i',  iS;  24  a  n. 

Burlington,  P.  &  C.  R.  R.  Co.  v.  X.  A.  &  S.  R.  R.  Co.  53 
Ind.  597,  §7  bs. 

Burnham  v.  1).  &  M.  R.  Co.  4  Dill.  503,  §  10  O  26. 

Burr  V.  Gregory,  2  Paine,  426,  §  1  g  6,  ". 


234  TABLE   OF   CASES, 

Burson  v.  Kat.  Park  Bank,  10  lud.  173,  §  11  f  ^9. 

Burt  V.  Keves,  1  Flippeu,  61.  §§  1  r  ^-i;  11  m  ". 

Burts  V.  Loyd,  45  Ga.  104,  §  6  C  20. 

Burwell,  Ex  parte,  3  Hughes,  559,  §  25  b  3. 

Bushnell  r.  Kennedy,  9  Wall.  389,  §§  1  p  i,  4-  10  1  1  15; 

llg4,  5,  8;  iini  s  18  b  3. 
Butler  V.  Farnsworth,  4  Wash.  C.  C.  101.  §  1  k  1. 
Butterfield  v.  Home  Ins.  Co.  14  Minn.  410,  §  11  i  6. 
Buttuer  v.  Miller,  1  Woods,  620,  §§  17  b  ^i;  27  b  5. 
Bybee  v.  Hawkett,  5  Fed.  Eep.  1,  §§  10  n  i;  10  o  u. 
Byers  v.  Fowler,  12  Ark.  218,  §  1  a  i-\ 
Byrdeck  v.  Hale,  7  Biss.  96;  8  Cli.  L.  X.  192,  §  11  c  7. 
Byrne  v.  Holt,  2  Wash.  C.  C.  282,  §  1  j  6, 
Cabrera,  Ex  parte.  1  Wash.  C.  C.  235,  §§  1  a3;  1  b  1. 
Calder  v.  Bull,  3  Dall.  399,  §  1  e6,  «. 
Calderwood  v.  Braly,  28  Cal.  97,  §  5  bi. 
Calderwood  v.  Hager,  20  Cal.  167,  §§  5  bi,  6,  7^  8;  11  b23. 
Callahan  v.  Louisville  etc.  E.  Co.  11  Fed.  Eep.  536,  §  10  ke. 
Calloway  r.  Ore  Knob  Co.  74  X.  C  200,  §  10  mi,  14. 
Campbell  v.  Jordan,  Hemp.  534,  §  1  p^. 
Campbell  v.  Wallen,  1  Mart.  &  Y.  266,  §  11  c  «,  n. 
Cape  Giradeau  E.  E.  Co.  v.  Winston,  4  Cent.  L.  J.  127,  §  6 

ci". 
Capehartu.  Stewart,  SOX.  C.  101,  §  25  note. 
Capron  v.  Van  Xoorden,  2  Cranch,  126,  §  11  b  3. 
Carpenter  v.  X.  Y.  &  X.  H.  E.  E.  Co.  11  How.  Pr.  481,  §§  5  a 

11;  11  j  5. 
Carraher  r.  Brennan,  7  Biss.  497,  §§  6  note  2;  10  ni;  10 

O  1,  ",  26. 

Carrington  v.  Florida  E.  E.  Co.  9  Blatchf.  467,  §§  17  a"; 

17  e  1,  4. 
Carswell  r.  Schley,  59  Ga.  17.  §§  10  QiS;  11  b2o,  27;  n  ^8; 

11  h  3, 1. 
Carter  v.  Tread  well,  3  Story,  25,  §  4  d  i". 
Cary  v.  Curtis,  3  How.  236,  §§  1  aS,  O;  1  b  4, 
Case  V.  Clarke,  5  Mason,  70,  §§  1  m^;  10  d<5. 
Case  V.  Douglass,  1  Dill.  299,  §  10  p  n,  12. 
Castle  V.  Bullard.  23  How.  172,  §  19  a  2. 
Catlett  r.  Pacilic  Ins.  Co.  1  Paine,  5^)4,  §  1  m^. 
Celluloid  Manuf .  Co.  v.  Goodyear  D.  V.  Co.  13  Blatchf. 

375.  ^§lfii;  Igii;  1  i  10. 
Central  C.  E.  E.  Co.  v.  Twenty-third  St.  E.  E.  Co.  54  How. 

Pr.  168,  §  1  e  4. 
Cessel  V.  McDonald,  57  How.  Pr.  175;  S.  C.  16  Blatchf.  150, 

§§4  6  4;  lOpiS;  10qi2:  11  j  9. 
Chaffee  v.  Hay  ward.  20  How.  208,  §  2  b  i. 
Chaffraix  v.  Board  of  Liquidation,  11  Fed.  Eep.  638,  §  10 

n3i. 


TABLE   OF  CASES.  235 

Chamberlain  v.  Amer.  L.  &  T.  Co.  18  N.  Y.  Supr.  370,  §§  11 

g  11 ;  11  j  1,  '->,  10. 
Chamberlain  v.  Eckert,  2  Biss.  126,  §  1  pi^. 
Chambers  v.  Holland,  11  Fed.  Rep.  209,  §§  10  ii2;  10  o3. 
Chandler  v.  Coe,  56  N.  H.  184,  §  11  f  i^,  '^^ 
Chapman  v.  Barger,  4  Dill.  557,  §§  10  b  13;  10  h^. 
Chappedelaine  v.  Dechenaux,4  Cranch,  308,  §§1  m  i,  is,  16; 

Ips. 
Charter  Oak  Co.  v.  Star  Ins.  Co.  0  Blatchf.  208,  §  10  a  6, 14. 
Chatham  Xat.  Bank  v.  Merchants'  Nat.  Bank  of  West  Va. 

1  Hun.  702,  §§112;  5  aiS;  24  a  1,  5. 
Cherokee  Xa.  v.  Georgia,  5  Peters,  1,  §  1  m  n. 
Chester  v.  Chester,  7  Fed.  Rep.  1,  §§  10  bi9;  10  n26;  U 

b29. 

Chicago  V.  Gage,  6  Biss.  467:  S.  C.  8  Ch.  L.N.  49,  §§  6  note 

2;   10  n  2,  17,  18;   10  O  2,   ',26. 

Chicago  &  N.  \Y.  R.  R.  Co.  v.  Chicago  &  P.  R.  R.  Co.  6 

Biss.  219,  §  Iks,  25. 
Chicago  &  N.  W.  R.  Co.  v.  Whitton,  13  Wall.  270,  §§  7  a  i; 

10  k  25. 
Chicago  B.  &  Q.  R.  Co.  v.  Welch,  44  Iowa,  665,  §  11  e  13, 
Chicago  &  W.  I.  R.  Co.  v.  L.  S.  &  M.  S.  R.  Co.  5  Fed.  Rep. 

19;  S.  C.  11  The  Reporter,  323,  §  10  ki5,  2\  24. 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  McComb,  17  Blatchf.  371, 

§§  1114;  10  j  1,6. 
Childress  v.  Emerv,  8  Wheat.  642,  §§  1  pS;  4  d". 
Chisholm  v.  Ga.  2  ball.  419,  §  1  i  7. 
Chittenden  v.  State,  9  Fed.  Rep.  226,  §  10  h  i. 
Claflin  V.  McDermott,  12  Fed.  Rep.  375,  §  10  b  5. 
Clark  V.  Chicago,  M.  &  St.  P.  R.  Co.  11  Fed.  Rep.  355,  §§  6 

note  3;    10n35;    lOO^,  23;    lib  42;    11  g  2,  12;    11112; 

17  b  26. 
Clark  V.  Chicago,  R.  I.  &  P.  R.  R.  Co.   11  Fed.  Rep.  355, 

§  6  notei. 
Clark  V.  Delaware  etc.  Can.  Co.  11  R.  I.  36,  §  14  a  3. 
Clark  V.  Dick,  1  Dill.  8,  §  4  ai,  s. 
Clark  V.  Janesville.  1  Biss.  98,  §  1  p  33. 
Clark  V.  Opdvke,  17 N.  Y.  Supr.  383,  §§  10  hi;  10  n23;  11 

h5;  24  a  14. 
Clark  V.  Smith,  13  Peters,  195,  §  1  c  6,  i^. 
Clarke  v.  Delaware  &  H.  Can.  Co.  11  R.  I.  36,  §  11  f  « 
Clarke  r.  F.  C.  &  M.  Ins.  Co.  21  Law  Reporter,  394,  §§  15 

b5;  16a2. 
Clarke  v.  Jones ville,  4  Am.  Law  Reg.  593,  §  1  a^, 
Clarke  r.  Mathewson,  12  Peters,  164,  §  4  di6. 
Clarke  v.  Navigation  Co.  1  Story,  531,  §  2  e  4. 
Clarkson  v.  Manson,  4  Fed.  Rep.  257;  S.  C.  18  Blatchf,  443 

§§4bi',  21;  10  el,  3,7, 


236  TABLE  OF   CASES. 

Clearwater  v.  Meredith,  21  How.  489,  §§  1  j  H;  5  b3;  10 

11^. 
Clerks'  Charges,  In  re,  5  Fed.  Eep.  440,  §§  27  a";  27  dio. 
Clippinger  v.  Missouri  Val.  L.  Ins.  Co.  8  Ch.  L.  N.  115, 

§§llac;  11  ji;  14  b^  s  17  ci. 
Clippinger  v.  :Missouri  Val.  Ins.  Co.  26  Ohio  St.  404,  §  11 

C  3:2,  33. 

Coal  Co.  V.  Blatchford,  11  Wall.  172.  §§  1  j  lo,  u-  4  ^it;  10 

p-5;  17  b^-*. 
Cobb  r.  Globe  Mut.   L.  Ins.  Co.  3  Hughes,  452,  §§  11  gi^'; 

17  c^;  18  a  c. 
Cobb  V.  X.  E.  Ins.  Co.  6  Gray,  192,  §  4  a  9. 
Codwise  r.  Gleason,  3  Day,  3,  §  1  p  -^. 
Coffee  V.  Planters'  Bank,  13  How.  183,  §  1  p  -i,  -3. 
Coffin  V.  Haggin,  11  Fed.  Eep,  219,  §§  1  o  4;  1  r  13;  10  1 13, 
Coggill  V.  Lawrence,  2  Blatchf.  304,  §  18  b  n. 
Cohens  v.  Virginia.  G  Wheat.  264.  §§  1  ci;  1  e  1  2;  1  f  i; 

liio;  10  f^;  10  m",  H;  18  a  i^. 
Colcord  V.  Wall,  2  Miles.  459,  §§  10  g  S;  10  1 1. 
Cole  V.  La  Chambre,  31  La.  An.  41.  §§  11  dS;  He  21. 
Colson  V.  Lewis,  2  Wheat.  377,  §  12  a  2,  7. 
Commercial  &  Sav.  B'k  r.  Corbett,  5  Sawy.  172,  §§  11  j  3- 

14  a2;  14d4,  9;  18  cs. 
Commercial  etc.  B'k  v.  Slocomb,  14  Peters,  65,  §§  2  e^;  5 

b3;  1011^3. 

Commercial  Xat.  B'k  v.  Summons,  6  Ch.  L.  N.  344;  S.  C.  8 

id.  164,  §§1  ki3;  1 1  4,  '. 
Com.  r.  Artman,  3  Gratt.  43G,  ^  25  b  1. 
Com.  V.  Casev,  94  Mass.  214,  §§  27  cS;  27  ei. 
Conolly  V.  Tavlor,  2  Peters,  556,  §  1  j2,  4 
Connor  r.  Scott,  4  Dill.  242,  §§  10  f  \  ^,  \  9;  11  b  35-  H  h 

3;  11  j  1. 
Continental  Ins.  Co.  v.  Kasey,  27  Gratt.  216,  §§  1  k  i^:  4  a 

10;   llf  W    20. 

Cook  V.  Ford,  4  Cent.  L.  J.  560,  §§  5  note;  6  note  2 

Cook  V.  Whitney,  3  Woods.  715,  §§  10  h  3;  10  p 7;  14  d3, 

4;  17  C6. 
Cooke  V.  Seligman,  7  Fed.  Eep.  263,  §§  10  j  iS;  10  m  -;  11 

b  22,  31,  32;    11  c  23.  So. 

Cooke  V.  State  Xat.  Bank,  52  N.  Y.  96;  S.  C.  1  Lans.  494; 

50  Barb.  339,  §§  112;  7  b^;  10  j  7;  10  p  27;  10  j  lO;  11 

j5;  24  a  5. 
Coolev  V.  Lawrence,  12  How.   Pr.  176:  S.  C.  5  Duer,  605, 

§§5  a  15;  11  h  J;  18  all. 
Cooper  V.  Condon,  15  Kan.  572,  §  7  b  8. 
Cooper  V.  Galbrarth,  3  Wash.  C.  C.  546,  §§  1  j ';  1  ki;  1 

ni4;  10  dc. 
Cooper  V.  Thompson,  13  Blatchf.  434,  §  1  p  33. 


J  TABLE  OF  CASES.  237 

Copeland  v.  M.  &  C.  R.  R.  Co.  3  Woods,  651,  §  24  a  w. 
Corbin  v.  Van  Brunt,  4  Morr.  Trans.  818,  §  10  ui3. 
Corp.  V.  Vermilye,  3  Johns.  145,  §  11  b  i4. 
Cortes  Co.,  The,  v.  Thanhauser,  9  Fed.  Rep.  226,  §§  10  b  »; 

10  111. 
Cox  V.  East  Teun.  V.  &G.  E.  R.  Co.  62  Ga.  103,  §  11  f  9,  ^. 
County  Judges,  Cases  of,  3  Hughes,  576,  §§  16  a  6;  25  b*. 
Covington  D.  Co.  v.  Shepherd,  20  How.  227,  §  1  k  3. 
Cowles  V.  Mercer  Co.  7  Wall.  118,  §§  1  k  is,  ii-  10  ks. 
Cragie?;.  McArthur,  4  Dill.  474;  S.  C.  15  Alb.  L.  J.  120;  4 

Cent.  L.  J.  273;  9  Ch.  L.  N.  156,  §§10  a  i-^;  10  a  i3. 
Crane,  Ex  parte,  5  Peters,  206,  §^  11  gS;  23  a  i. 
Crane  v.  Morris,  6  Peters,  598,  §  19  a  2. 
Crane  v.  Eeeder,  15  Alb.  L.  J.  103,  §  10  g  4,  6. 
Crane  v.  Reeder,  28  Mich.  527,  §§  5  a  i;  10  p  ",  15;  11  f 

2    28. 

Crawford  v.  Burnham,  4  Am.  L.  T.  228,  §  1  d  8. 
Crescent  Citv  L.  S.  Co.  v.  Butchers'   Union  Co.  12  Fed. 

Rep.  225,"  §18  a  13. 
Cromie,  In  re,  2  Biss.  160,  §  14  d  i4. 
Cropper  v.  Coburn,  2  Curt.  465,  §  1  c  n. 
Cross  V.  Del  Valle,  1  Wall.  5,  §  10  b  is. 
Culbertson  v.  Wabash  Nav.  Co.  4  McLean,  544,  §  1  k  ». 
Culver  V.  Crawford  Co.  4  Dill.  239,  §§  1  d  2,  4^  6j  4  b  7;  10 

e  4,  5, 
Cunningham  v.  Co.  of  Rales,  1  Fed.  Rep.  274,  §  1  r  ?. 
Curtin  v.  Decker,  5  Fed.  Rep.  385,  §10  j  1,  ". 
Curtin  v.  Decker,  11  The  Reporter,  290,  §  4  d  12. 
Daniel  v.  Railroad  Co.  3  Wall.  250,  §  23  a  ". 
Dannmever  v.  Coleman,  11  Fed.  Rep.  97,  §  10  d  9. 
Danville  Banking  &  T.  Co.  v.  Parks,  88  111.  170,  §§  10  m 

19;  11  d  1,  8. 
Darst  V.  Bates,  51  111.  439,  §§  6  b  H;  11  b  i^;  11  C  21;  18 

a  11. 
Dart  V.  Arms,  19  How.  Pr.  429,  §  5  a  i^. 
Dart  V.  McKlnney,  9  Blatchf.  359,  §§  11  f  22  24^  23,  29.  n 

m  3,  5,  9. 
Dart  V.  Walker,  4  Daly,  188;  S.  C.  43  How.  Pr.  29,  §§  6  b 

3;   10  j  3;   10  PS  21;   10  q  §,  16;   11  b  37,  33 ;   U  f  28. 

Dartmouth  Coll.  v.  AVoodward,  4  Wheat.  625,  §  1  e  c. 

Davies  v.  Lathrop,  12  Fed.  I'.ep.  353,  §  10  c  n. 

Davis  V.  Braden,  10  Peters,  286,  §  23  a  s,  7. 

Davis  V.  Cook,  9  Nev.  134,  §§  1 1  2;  5  a  i;  5  b  i3;  10  O  is- 

10  p  15;  10  q  9, 12;  11  b  23;  24  a  5. 
Davis  V.  Life  Asso.  of  America,  11  Fed.  Rep.  781,  §  1  r  i» 
Davis  V.  Packard,  6  Peters,  41;  7  Peters,  276,  §  4  a  9. 
Day  V.  Newark  Manuf'g  Co.  1  Blatchf.  628,  §§  2  b  i;  2  c  i. 
De  Camp  v.  N.  J.  M.  L.  Ins.  Co.  2  Sweeny,  481,  §§  1  k  12 

7  b  4;   11  b  2,  3G.   11  c  27;   11  h  8;   18  b  13. 


238  TABLE  OF   CASES. 

Decker  v.  New  York  B.  &  P.  Co.  11  Blatchf .  76,  §§  2  c  i ; 

2  el". 
De  Laveaga  v.  Williams,  5  Sawy.  573,  §§  1  o  2,  4;  iq  1  7. 
Delaware  R.  Constr.  Co.  v.  D.  &  St.  P.  E,.  Co.  46  Iowa, 

406,  §§  11  b  46;   11  e  25;   11  h  6;   H  i  9. 

Dennick  r.  Eailroad  Co.  103  U.  S.  11,  §  1  r  i. 

Dennis  v.  Alachura  Co.  3  ^Yoods,  683,  5§  7  a  2;  7b':  11 

b31,  33;   lie  15;   14d3,  4;   17  b  11;  17  0  5;  17  d  2,  5. 

Dennison  v.  Lamed,  6  McLean,  496,  §  1  p  23, 
Denniston?'.  Potts,  19  Miss.  35,  §§4  d  S;  5  b  i;  10  b  2;  10 

d4,    8;llgO. 

Dennistoun  v.  Draper,  5  Blatchf.  336,  §§  10  c  «;  11  i"; 
llgio;  17  a  2,  5^  8;  17  b  1,2;  18  b  !« ;  24ai4;  10  cs. 

Dennistoun  v.  N.  Y.  &  N.  H.  E.  E.  Co.  1  Hilt.  62;  S.  C.  2 
Abb.  Pr.  278,  415,  §§  1  k  3;  5  b  2;  5  b  5;  10  k  4;  18 
a  12. 

Dennistoun  v.  Stewart,  18  How.  565,  §  23  a  n. 

Deshler  v.  Dodge,  16  How.  622,  §  1  p  e,  7. 

Deveraux  v.  Marr,  12  Wheat.  212,  §  23  a  3. 

Dexter  r.  Smith,  2  Mason.  303,  §  1  p  35. 

Dibble  r.  Augur,  7  Blatchf.  86,  §  1  g  21. 

Diggs  V.  Wolcott,  4  Cranch,  379,  §  18  C  1. 

Disbrow  r.  Driggs,  8  Abb.  Pr.  305,  note,  §§  4  b  4;  5  a  19, 

20;   11  h  7,  8^  n 

Dodge  r.  X.  W.  U.  Pack.  Co.  13  Minn.  458,  §  7  b  ^  n. 

Dodge  V.  Perkins,  4  Mason,  435,  §  4  d  i". 

Dodge  V.  Woolsey,  18  How.  331,  §  1  c  is. 

Donobue  v.  Mariposa  L.  &  M.  Co.  5  Sawy.  163;  S.  C.  6 

Cent.  L.  J.  487,  §§  6  c  3;  10  b  i5,  20;  10  u  3;  17  b  \ 
Doremus  v.  Bennet,  4  McLean,  224,  §  1  j  i3. 
Douglas  V.  Caldwell,  Co  X.  C.  248,  §  11  f  25,  26. 
Do  well  V.  Oris  wold,  5  Sawv.  39,  §  1  f  7,  8,  13. 
Doyle  V.  Continental  Ins."  Co.  94  U.  S.  535;  15  Alb.  L.  J. 

267,  §§  1  k  14;  4  a  10;  4  a  H;  10  k  n. 
Dromgoole  v.  Bank,  2  How.  241,  §  1  p2i. 
Dubuelet  v.  State,  2  Morr.  Trans.  559,  §§  10  f  i3;  18aiS: 

25  c  13. 
Ducat  V.  Chicago,  10  Wall.  415,  §  4  a  9. 
Dugan  V.  U.  S.  3  Wheat.  172,  §  1  i  4. 
Duncan  v.  Gegan,  101  U.  S.  810,  §  18  c  9,  w. 
Dundas  r.  Bowler,  3  McLean,  204,  §  1  p28. 
Dunham  v.  Bau:d,  2  Week.  Notes,  52,  §  11  h^. 
Dunn  V.  Waggoner,  3  Yerg,  59,  §§  5  b  i;  6  c  2-2. 
Durand  v.  Hollius,  3  Duer,  686,  §  5  a  i4. 
Durham  v.  Southern  L.  Ins.  Co.  46  Tex.  182,  §  11  g  i^. 
Durousseau  v.  U.  S.  6  Cranch,  307,  §  1  i  ^. 
Dustin  V.  Dickinson,  2  Mich.  N.  P.  6,  §  10  p  ". 
Du  Vivier  v.  Hopkins,  116  Mass.  128,  §§  10  a  12 ;  10  C  i9; 

11  g  IS;  11  k  C. 


TABLE  OF  CASES.  239 

Duwell  V.  Bohmer,  10  Ch.  L.  N.  356,  §  1  h  2. 
Dwight  V.  Centr.  Vt.  R.  Co.  9  Fed.  Rep.  785,  §  1  r  4. 
D'Wolf  v.  Raband,  1  Peters,  476;  S.  C.  Paine,  580,  §§  10  d 

6;  19  a  2. 
Easton  v.  Rucker,  1  ^larsb.  J.  J.  232,  §§  11  b  17, 45;  17  c  5. 
Edgertou  v.  Gilpin,  3  Woods,  277.  §§  10  m  i;  17  a  12. 
Edwards  v.  Ward,  3  Bush,  606,  §  11  i  6. 
Ehrman  v  Teutonia  Ins.  Co.  1  Fed.  Rep.  471,  §  2  c  6, 
Elfort  V.  Bevins,  1  Busb,  4G0,  §  25  b  w. 
Ellerman  v.  New  Orleans  R.  R.  Co.  2  Woods,  120,  §§  1  k 

12;  10  06,  26,  23;  14  dio. 
Ellis  V.  Sisson,  11  Fed.  Rep.  353,  §§  10  h  7;  10  i  H;  10  O  1. 
Elmore  v.  Grymes,  1  Peters,  469,  §  19  a  2. 
Ely  V.  Korth.  P.  R.  R.  Co.  7  Week.  Notes,  145;  S.  C.  36 

Leg.  Int.  164,  §§  11  f'^;  24  note;  24  ai-. 
Empire  Trans.  Co.  v.  Richards,  88  111.  4G4,  §  11  c  22. 
Erie  R.  R.  Co.  v.  Stringer,  32  Ohio  St.  468,  §§  1  k  U;  11 

Erwin  v.  Lowry,  7  How.  172,  §  1  a  12. 

Eureka  Consol.  M.  Co.  v.  The  Richmond  Consol.  M.  Co.  2 

Fed.  Rep.  829,  §  10  d  s. 
Evans  v.  Bollen,  4  Dall.  342,  §  1  n  7. 
Evans  v.  Faxon,  10  Fed.  Rep.  312,  §§  10  o  5,  6^  H;  17  a  4. 
Evans  v.  Gee,  11  Peters,  80,  §  1  p  23. 
Everts,  Ex  parte,  7  Am.  Law  Reg.  79,  §  1  b  ^. 
Fairchild  v.  Durand,  8  Abb.  Pr.  305,  §§  10  h  6;  10p23; 

10qi2. 
Fallis  V.  McArthur,  1  Bond,  100,  §§  2  a  9;  5  b  iS;  11  b  28. 
Falls  Wire  Manuf  g  Co.  v.  Broderick,  6  Fed.  Rep.  654, 

^§4b2i:  10  el. 
Fargo  V.  McVicker,  38  How.  Pr.  1,  §  1  k  3. 
Farmers'  L.  &  T.  Co.  r.  C.  P.  &  S.  R.  R.  Co.  12  Ch.  L.  N.  65, 

§§7  a  2;  10oi2;  17  d  5. 
Farmers'  L.  &  T.  Co.  v.  Maquillan,  3  Dill.  279,  §§  7  a  5;  7 

b9. 
Farmer  v.  Calvert  Pub.  Co.  5  Ch.  L.  N.  1,  §  1  h  3. 
Farrestr.  Edwin  Farrest  House,  1  Fed.  Rep.  489,  §  11  d  22. 
Fasnacht  v.  Frank,  23  W^all.  416,  §§  10  a  2-5;  llf  17;  11 

g",  23;  17  gi;  18  a  16. 
Fenn  v.  Holme,  21  How.  486,  §  1  C  4. 
Ficklin  v.  Tarver,  59  Ga.  263,  §§  11  g  i^;  11 12;  H  j  1. 
Field  V.  Baker,  1  Code  Rep.  (N.  S.)  292,  §  5  a  i9. 
Field  V.  Blair,  1  Code  Rep.  (K  S.)  361,  §§  5  a  26;  H  b  26, 
Field  V.  Lownsdale,  Deady,  288,  §§  2  a  9;  5  a  2;  6  b  s  8; 

6  c 5;  17  a-;  17  b  6,  8. 
Field  r.  Schieffelin,  7  Johns.  Ch.  252,  §  10  b  I6. 
Fields  V.  Lamb,  Deadv,  430,  §  6  b  3. 
Findlev  v.  Satterfield,  3  Woods,  504,  §§  27  note:  27  c  1,  7, 

9;  27  d  7. 


240  TABLE   OF   CASES. 

±irst  Nat.  Bank  v.  Bennington,  IG  Blatclif.  5.3,  §  1 1 12. 
First  Nat.  Bank  v.  Douglas  Co.  3  Dill.  298,  §  1 1  -i,  6,  6. 
First  Nat.  Bank  v.  King  W.  I.  Co.  2  Cent.  L.  J.  505,  §  10 

n  5,  17. 
First  Presb.  See  of  G.  B.  v.  Goodrich  T.  Co.  7  Fed.  Rep. 

257,  ^§  10  i  0;  10  k  30;  10  o  5,  c. 
Fisk  V.  Chicago,  11. 1.  &  V.  K.  Co.  53 Barb.  472;  3  Abb.  Pr. 

N.  S.  453,{^^lki-;  5  b  1,  '\  i';  6ai,  ",  S;  7b0;  10  j  3- 

10  k  -G;  16  m  1,  1  ;  10  p  11,  1-;  10  q  5,  c. 

Fish  V.  Fish,  4  Martin  N.  IS.  G76,  §§  4  c  '-»;  5  a  22.  n  b  S2 

S3;  18  a  11. 
Fisk  r.  N.  P.  R.  R.  Co.  6  Blatchf .  362,  §  4  a  1. 
Fisk  V.   Union  Pac.  R.   R.   Co.   G  Blatclif.   3G2;   S.   C.  8 

Blatclif.  l^UO,  §^  2  a  '■';  4  c  1,  3;  4  d  i;  10  q  •*;  11  c  26 

11  f  G;  11  g  ii,X  iG;  11  i  \  G;  11  j  5;  11  m  5;  14  b  2 
14  d  1-1;  15  a  i,'2;  18  c  2;  24  a  1,  i",  n,  iS;  25  c  & 
27  d  2;  27  es,  6,  c. 

Fitch  V.  Creighton,  24  How.  159,  §  1  c  i5, 
Fitz  V.  Ilayden.  4  Martin  N.  S.  G53,  §  11  C  I'J. 
FitzgerakU'.  Allman,  82 N.  C.  492;  S.  C.  22  L.  J.  218,  §§  25 

note ;  25  a  '^. 
Flanders  v.  iEtna  Ins.  Co.  3  Mason,  158,  §§  2  d  9;  2  e  2,  4^  6. 
Fletcher  v.  Morey,  2  Story,  555,  §  1  c  «,  la. 
Florence  v.  Butler,  9  Abb.  Pr.  N.  S.  G3,  §§  7  b  i-t,  15;  25 

note. 
Florence  Sew.  M.  Co.  v.  Grover  &  B.  Co.  1  Holmes,  235, 

§  10  j  10. 
Fonda  v.  British  Am.  Ins.  Co.  10  Ch.  L.  N.  309,  §  2  c  6. 
Foote  V.  Town  of  Hancock,  15  Blatclif.  343,  §§  1  o  i;  101 8. 
Forbes,  Ex  parte,  1  Dill.  363,  ^  1  r  20. 
Forrest  v.  Keeler,  17  Blatcbf.  622,  §  7  b  20; 
Forstain  r.  Ravenel,  17  How.  369,  §  1  c  3. 
Forsyth  v.  Pierson.  9  Fed.  Rep.  801,  §  2  a  n. 
Fossv.  First  Nat.  Bk.  3  Fed.  Rep.  185,  §  1 1  6. 
Fountain  r.  Town  of  Angelica,  12  Fed.  Rep.  8,  §  10  1 1"*. 
Fouvergne  v.  New  Orleans,  18  How.  470,  §  J.0  c  i". 
Fowler  v.  Lindsay,  3  Dall.  411,  §118. 
Fowlkes  V.  Fowlkes,  8  Ch.  L.  N.  41.  §  25  a  5. 
Fox  V.  Ohio,  5  How.  410,  §§  1  b  W;  1  f  i;  1  r  20. 
Franciscus  v.  Surget,  6  Robt.  33,  §  14  a  <>. 
Frank  G.  &  S.  M.  Co.  v.  Larimer  M.  &  S.  Co.  8  Fed.  Rep. 

724,  §  10  f  ic. 
Frazer,  In  re,  10  Ch.  L.  N.  390;  S.  C.  18  Alb.  L.  J.  353,  §§6 

CIS;  10  ci";  10  nil;  10  o  is. 
French  v.Hav,  22  AVall.  250,  §§  11  g  iC;  17  e  3,  4;  18  c  4  6. 
Fulton  V.  Golden,  20  Alb.  L.  J.  229,  §§  11  d  i;  11  g  15;  11 

j  1. 
Gaines  v.  Chew,  2  How.  619,  §  1  c  12. 


TABLE  OF  CASES.  241 

Gaines  v.  Fiientes,  92  U.  S.  10;  S.  C.  ?>  Cent.  L.  J.  371;  8 
Ch.  L.  N.  225,  §§  1  b  ";  4  a  2,  3-  4  e  2;  10  c  i3   ig.  10 

i5;   llg4,  5;   17  gl. 

Gale  V.  Babcock,  4  Wash.  C.  C.  344,  §§  10  b  s-  10  C  7;  10 

Gallatin  v.  Irwin.  Hopk.  Ch.  59,  §  10  b  17. 

Galpin  t'.  Critchlow,  112  Mass.  3.3<},  §  11  f  i^,  22. 

Galvin  v.  Boutwell,  9  Blatchf.  470,  §§  4  d  ■•;  10  d  2;  17  b 

6    20. 

Garci  ?-.'Durant,  4  Cliff.  113,  §  24  a  ",  12. 

Garden  City  Manuf .  Co.  v.  Smith,  1  Dill.  305,  §§  15  b  1  7 

8;  16aX5. 
Gardner  v.  Brown,  21  Wall.  36,  §§  6  C  is,  17 ;  10  p  25. 
Gardner  v.  Sharp.  4  Wash.  C.  C.  GOO,  §  1  j  7. 
Garrett  v.  Bonner,  30  La.  An.  1305.  §  11  g  "■>. 
Gassies?;.  Ballon.  (J  Peters,  701,  §§  1  j  O;  1  k  i;  1  m  4. 
Gate  V.  Babcock,  4  Wash.  C  C.  344,  §  17  c  4. 
Gaugliran  r.  X.  W.  F.  Ins.  Co.  3  Biss.  485,  §  18  a  u. 
Gaza  way  v.  Dana,  10  Blatchf.  34,  §  25  c  &. 
Gelston  r.  Johnson,  3  N.  J.  625,  §  5  a  1. 
George  v.  Pilcher,  28  Gratt.  299,  §§  6  C  9;  10  j  10,  7,  6;  10 

qi2. 
Georgia  v.  Atkins,  1  Abb.  U.  S.  22;  S.  C.  35  Ga.  315,  §  1  f  17. 
Georgia  r.  Braislfurd,  2  Dall.  402;  3  Dall.  1,  §§  1  i  7;  1  k  is. 
Goorgia  r.  INIadrazo,  1  Peters,  116,  §  1  i  7,  9. 
Georgia  v.  O'Grady,  3  Woods,  469,  §  27  c  7,  9. 
Georgia  v.  Stanton,  6  Wall.  50,  §  1  i  1. 
Germania  F.  Ins.  Co.  v.  Francis,  52  Misa.  457,  §§  17  f  1,  4- 

17  g  1. 
Geyer  v.  Hancock  Ins.  Co.  50  IT.  H.  224,  §§  4  d  14;  6  c  23. 
Gibson  v.  Chew,  16  Peters,  315.  ?  1  p  21. 
Gibson  r.  Johnson,  1  Peters,  44,  ^§  5  a  1,  27;  H  f  30;  17  g  6. 
Gilman  v.  Perkins.  7  Fed.  Kep.  887;  S.  C.  13  The  Ptcporter, 

257,  §§lai-i;  1  r  i9. 
Gindrat  r.  Dane,  4  Cliff.  260,  §  1  r  2^5. 
Girard,  Ex  parte,  3  Wall.  Jr.  263,  §§  5  b  1,  6-  6  C  S;  10  C 

7;  10  m  3, -^2. 

Girardey  v.  Moore,  3  Woods,  397;  S.  C.  5  Cent.  L.  J.  78, 

§§  5  note;  6  note  1,  2;  10  o  1,  5,  8, 15^  21, 
Gist,  Ex  parte,  26  Ala.  156,  §  1  a  1. 
Gold  W.  &  W.  Co.  t'.  Keyes,  96  U.  S.  199,  §§  1  f  i;  10  a  i; 

lOf  1,2,7;  17  a  11. 
Goodrich  v.  Hunton,  29  La.  An.  372,  §§  5  b  i;  7  b  5;  10  b 

2,  5,  G^  10;  10  p  11;  10  q  12;  11  b  37,  40.  11  g  14, 
Goodyear  v.  Dav,  1  Blatchf.  565,  ^§  1  g  3;  1  j  4. 
Goodyear  v.  Union  Rub.  Co.  4  Blatchf.  63,  §  1  g  s. 
Gordon  v.  Anthony,  16  Off.  Gaz.  1135.  §  1  g  1. 
Gordon  v.  Hobart,  2  Sum.  401,  §  1  c  n.  13. 

DESTY  KEilOVAL.— »1. 


242  '  TABLE  OF   CASES. 

Gordon  v.  Longest,  16  Peters,  97,  §§  1  d  3;  4  b  4,  is,  19;  4  C 

4,  11;  11  g  14,  16;   11  h  15;   11  i  2,  6;    17  g  1. 

Gosborn  v.  Alexander,  2  Bond,  158,  §  1  c  i",  i5. 

Goshoru  V.  Supervisors,  1  W.  Va.  308,  §  10  k  25. 

Gracie  v.  Palmer,  8  Wheat.  699,  §§  2  d  6;  2  e  4, 

Graham,  Ex  parte,  3  Wash.  C.  C.  456,  §§  1  q  i;  2  d  2. 

Graham  v.  Stucken,  4  Blatchf.  50,  §  1  m  3. 

Grant  v.  Ptaymond,  6  Peters,  220,  §  23  a  2. 

Gravson  v.  Va.  3  Dall.  320,  §117. 

Greeley  v.  Smith,  3  Storv,  76,  §  1  k  s. 

Greely  v.  Townsend,  25  Cal.  601,  §§  4  a  i;  10  q  2. 

Green's  Administratrix  v.  Creighton,  23  How.  90,  §  4  d  i'^. 

Green  v.  Custard,  23  How.  484,  §§  4  b  20-  10  1 15;  11  g  4- 

1115;   17  gl. 

Green  v.  Liter,  8  Cranch,  229,  ^  1  d  8. 
Green  v.  U.  S.  9  Wall.  653,  §  10  c  2,  3. 
Greene  v.  Klinger,  10  Cent.  L.  J.  47;  10  Fed.  Eep.  089, 

§§  10  m  8,  13;  10  p  30;  11  d  3;   11  e  9;   11  f  7. 

Green  wait  v.  Tucker,  10  Fed.  Pep.  884,  §  10  1  u. 

Gregg  V.  Weston,  7  Biss.  360,  §  1  p  n,  2-3. 

Grimball,  Ex  parte,  8  Cent.  L.  J.  151,  §§  6  note  i;  6  c  19. 

Griswold  v.  Cent.  Vt.  P.  Co.  9  Fed.  Eep.  797,  §  1  r  i^. 

Griswold  v.  Sedgwick,  1  Wend.  126,  §  1  a  12. 

Grover  v.  Amer.  Express  Co.  11  Fed.  Eep.  §  2  c  9. 

Gurnee  v.  Brunswick  Co.  1  Hughes,  270,  §§  7  b  20;  10  c  1^: 

lid  3, 8;  lie  13. 
Hadley  v.  Dunlap,  10  Ohio  St.  1,  §§  4  c  H;  10  m  3;  11  g  5, 

14,   16. 

Hagan  v.  Walker,  14  How.  29,  §§  5  b  3;  10  n  23. 

Hall  V.  Eicketts,  9  Bush,  366,  §  11  f  lo,  20. 

Halsey  v.  Township,  3  Fep.  Eep.  364,  §  1  p  29. 

Halstead  v.  Lyon,  2  McLean,  226,  §  1  p  is. 

Haney  v.  Sharp,  1  Dana,  442,  §  1  b  9. 

Hannauer  v.  Woodrufe,  10  Wall.  482,  §  23  a  21. 

Hanover  F.  Ins.  Co.  v.  Keogh,  7  Fed.  Eep.  764,  §§  10  j  i": 

10  n  22, 
Hanover  Nat.  B'k  v.  Smith,  13  Blatchf.  224,  §  4  C  13,  14,  15. 
Hargroves  v.  Pedd,  43  Ga.  142,  §  10  c  ^~,  is. 
Harris  v.  Hess,  10  Fed.  Pep.  263,  §  1  r  3. 
Harrison  v.  Hadley,  2  Dill.  229,  §  1  a  3. 
Harrison  v.  Powan,  Peters  C.  C.  489,  §§  1  j  5;  2  a  iS;  2  e 

1^  3^  4^  6,9. 

Harrison' t\'  Shorter,  59  Ga.  112,  §§  5  b  i^;  10  b  S;  11  b  21. 
Harrison  Wire  Co.  v.  Wheeler,  11  Fed.  Eep.  206,  §§  1  r  13; 

18  ci. 
Hartell  v.  Pilghman,  99  U.  S.  547,  §  1  g  3. 
Harter  Township  v.  Kernochan,  2  Morr.  Trans.  235,  §§10 

i8;lle35. 


TABLE  OF  CASES.  243 

Hartford  F.  Ins.  Co.  v.  Doyle,  6  Biss.  463;  S.  C.  6  Cent.  L. 

J.  41,  §5  4  a  10,  11;  10  k  u. 
Hartford  F.  Ins.  Co.  v.  Green,  52  Miss.  332,  §§  11  b  8,  2i; 

11  h  w. 
Hartshorne  v.  Wright,  Peters  C.  C.  64,  §§  1  d  S;  1  j  9. 
Hatch  V.  Chicago,  11.  I.  etc.  Co.  6  Blatchf.  105,  §§  1  k  4,  12; 

4  b  13;   4  C  2,  3;   5  b  6;   7  b  9;   10  k  8;   10  m  3,  15,  18;   11 
a  7;  11  g  15;  11  i  2;  11  j  1,  5,  6;  14  q  3;   15  C  6;  16  a  3. 

Hatch  V.  Preston,  1  Biss.  19,  §  10  a  i^. 

Hatch  V.  Wallamet  Iron  B.  Co.  11  The  Reporter,  X.  S.  630, 

§§lf  6;   10  f  2. 

Havemeyer  v.  Iowa  Co.  3  Wall.  294,  §  23  a  6. 

Hawes  v.  Contra  Costa  W.  Co.  11  Fed.  Rep.  93,  note,  §§  10 

1 12;  24  a  11. 
Hayden  i\  Androscoggin  Mills.  1  Fed.  Rep.  93,  §  2  c  *. 
Hazard  v.  Chicago,  B.  &  P.  R.  R.  Co.  4  Biss.  453,  §  11  f  31. 
Hazard  v.  Durant,  9  R.  I.  602,  §§  5  a  ";  5  b  i  9;  10  j  3- 

10  p  U,   12;   11  C  1,  8;   11   g5;   24  a  1. 

Healey  v.  Prevost,  25  Int.  R.  R.  240,  §§  4  c  8;  10  o  19;  10 

p30. 
Heath  v.  Austin,  12  Blatchf.  320,  §  17  b  i5,  24. 
Hebert  v.  Lefevre,  31  La.  An.  363,  §  10  f  9. 
Hepburn  v.  Ellzey,  2  Cranch,  445,  §§  1  j  9;  1  m  4;  10  p  IS; 

23  a  2. 
Herndon  v.  Ridgwav,  17  How.  424,  §§  2  a  i;  2  d  i;  2  e  n 
Herryford  v.  Mxna  Ins.  Co.  42  Mo.  153,  §§  1  k  3, 12;  H  g  16. 
Hervey  v.  Illinois  etc.  R.  Co.  7  Biss.  103;  S.  C.  3  Fed.  Rep. 

707;  12  Ch.  L.  N.  407,  §§  6  note  2;  10  m  2I;  10  n  is  20. 

10  O  1,  2,  5^  11,  18,  20;   17  b  18;    17  d  3;   H  C  29. 

Hill  r.  Henderson,  21  Miss.  688,  §  11  c  12.      . 

Hill  V.  Whitcomb.  1  Holmes,  317,  §  1  g  9. 

Hill  r.  Winne,  1  Biss.  275,  §  1  p  23. 

Hills  V.  Hompton,  4  Sawy.  195,  §  1  f  9. 

Hinckley  v.  G.  C.  &  S.  R.  R.  Co.  12  Ch.  L.  N.  176,  §  11  k  3. 

Hinckley  v.  Railroad  Co.  100  U.  S.  153,  §  18  b  9. 

Hoadley  v.  San  Francisco,  94  U.  S.  4;  S.  C.  3  Sawv.  553;  8 

Ch.  L.  N.  1:34,  §§  10  a  4;   10  g  3,  4,  6;  11  f  28;   17  g  1. 

Hobbs  V.  Manhattan  Ins.  Co.  56  Me.  417,  §§  1  k  12;  4  a  9; 

10  k  10. 
Hodge  V.  Hudson  River  R.  R.  Co.  6  Blatchf.  85,  §  36  a  1. 
Hodgkins  v.  Hayes,  9  Abb.  Pr.  :N'.  S.  87,  §  6  b  n. 
Hodgson  ■;.  Bowerbank,  5  Cranch,  303,  §§  1  a  8;  1  m  4;  4 

d2:  10  di;  14  a  8. 
Hodgson  V.  Mill  ward,  3  Grant,  412.  §§  1  f  3  4;  4  a  i;  17  a 

i*;  17  b  4;  25  note;  25  b  5,  7;  25  c  1 
Hodson  V.  Lake  Shore  etc.  R.  M.  Co.  13  The  Reporter,  41, 

§  11  e  5. 
Holden  v.  Putnam  Fire  Ins.  Co.  46  N.  Y.  1,  §§  1  k  3;  5  b 

18i   10  k  16;   11  b  12,  13,  24 J  11  h  15;   14  d  12. 


244  TABLE  OF  CASES. 

Hollingsw'orth  v.  Adams,  2  Dall.  396,  §  2  b  i. 

Holmes  v.  O.  &  C  R.  Co.  5  Fed.  Eep.  75,  §  1  r  2. 

Home  Ins.  Co.  v.  Curtis,  32  Mich.  402,  §§  4  C  12;  11  a  12. 

Home  Ins.  Co.  v.  Davis,  29  Mich.  238,  §  1  k  12 

Hope  Ins.  Co.  v.  Boardman,  5  Cranch,  57,  §§  1  j  i;  1  k  3. 

Hopkins,  Re,  18  Bank  Reg.  339,  §  11  a  3. 

Hough  V.  Western  Trans.  Co.  1  Biss.  425,  §  14  d  14. 

Houser  v.  Chiyion,  2  Woods,  273,  §§  10  f  9,  23;  U  b  35  46 

4-;  11  j  11;  1119,  11;  17  b  19. 
Howard  v.  Crompton,  14  Blatchf .  333,  §  20  note. 
Howe  S.  M.  Co.  v.  Edwards,  15  Blatchf.  405,  §§  18  b  2;  19 

ai,  3;  20  a  4. 
Howes  V.  Kute,  4  Fish.  Pat.  Cas.  263,  §  1  g^. 
Howland  etc.  Works  v.  Brown,  13  Bush,  681,  §§  10  j  lO; 

10  p  13. 

Hovt  V.  Wright,  4  Fed.  Rep.  168,  §§  1  o  i;  10  1  9;  17  a  w. 

Hubbard  v.  Bellew,  3  Fed.  Rep.  447,  §  1  r  5. 

Hubbard  v.  Is'orthern  R.  Co.  3  Blatchf.  84:  S.  C.  25  Vt.715; 

§§la3;  5bi,  4,  9;  lOpia. 
Huddv  V.  Havens,  5  Cent.  L.  J.  66,  §  11  d  i. 
Huder  v.  Ins.  Co.  25  Wis.  143,  §  1  k  i^. 
Hulsecamp  v.  Teel,  2  Dall.  358,  §§  1  d  i«;  4  b  19. 
Hunter  v.  Royal  Canadian  Ins.  Co.  3  Hughes,  234,  §§  1  k 

^;  11  ei5;  18  a  6. 
Hurst  V.  INIcXeil,  1  Wash.  C.  C.  70,  §  1  o  7. 
Hurst  V.  Railroad  Co.  93  U.  S.  71,  5§  10  j  4;  10  p  3,  n 
Hurt  V.  Hollingsworth,  100  U.  S.  100,  §   11 1  5. 
Hyde  v.  Phoenix  Ins.  Co.  2  Dill.  525,  §  17  c  i. 
Hyde  v.  Ruble,  3  Morr.  Trans.  516,  §§  6  note  i,  3;  10  j  3,  u 

12;  10  n  21. 
Imbush  V.  Farwell,  1  Blatchf.  571,  §  5  b  3. 
Imlay  v.  Railroad  Co.  4  Blatchf.  2-27,  §  1  g  23. 
Indiana  B.  &  W.  R.  Co.  i'.  Risley,  50  lud.  60,  §§  10  b  7; 

11  b  24. 

Inhab.  of  School  Dist.  t'.  ^tna  Ins.  Co.  66  Me.  370,  §  11  d 

1^  8. 

Insurance  Asso.  v.  Boon,  95  U.  S.  117,  §  20  b  i,  3,  4, 
Insurance  Co.  v.  Bangs,  103  U.  S.  435;  2  Morr.  Trans.  791, 

§§  1  r  26;  2  a  12. 
Ins.  Co.  i\  Dunn,  19  Wall.  214,  §§  4  a  2;  4  c  w,  i^;  7  b  9; 

11  f  2,  3;  11  g  13,  U    16;  11  h  15;  17  g  1. 

Insurance  Co.  v.  Francis.  11  Wall.  210,  §§  1  k  12-  10  j  4- 
lOpi";  llb2i;  17b6. 

Insurance  Co.  v.  Laettel,  7  Cent.  L.  J.  378,  §  4  d  12. 
Insurance  Co.  v.  McGuire,  52  Miss.  227,  §  11  b  21. 
Ins.  Co.  V.  Morse,  20  Wall.  445,  §§  10  k  12,  i3;  14  d  i". 
Ins.  Co.  V.  Pechner,  95  U.  S.  183;  S.  C.  6  Lans.  411,  §§  5  b 

11;   lib  24;   11  f  5. 


TABLE  OF  CASES.  245 

Iowa  Home  Co.  v.  Des  Moines  etc.  R.  R.  Co.  13  The  Re- 
porter, 385,  §§  1  r  8;  10  i  is. 

Iowa  &  M.  Ins.  Const.  Co.  In  re,  10  Fed.  Rep.  401;  6  Fed. 
Rep.  799,  §§  7  b  ^^;  10  a  -^-i;  10  O  ^^  10  p  30;  11  i  8. 

Ins.  Co.  V.  Ritchie,  5  Wall.  541,  §  27  a  3. 

Irvine  v.  Lowry,  14  Peters,  293,  §§  1  j  ii;  2  d  8. 

Jackson  v.  Mutual  Ins.  Co.  3  Woods,  413;  S.  C.  60  Ga.  423, 
§§4di^;  llbi3;  11  j  2;  17  ci. 

Jackson  v.  Stiles,  4  Johns.  493,  §§  5  a  i^^;  6  c  «. 

Jackson  v.  Twentyman,  2  Peters,  13U,  §  1  m  '',  6. 

James  v.  Thurston,  6  R.  I.  428,  §§  10  m  -;  Hi  2. 

Jenkins  v.  Switzer,  33  Leg.  Int.  282,  §  17  f  3. 

Jett's  Case,  18  Gratt.  942,  §  1  r  -<>. 

Jifkins  V.  Sweetzer,  13  Ch.  L.  N.  103,  §§  11  e  ^s,  30^  32;  n 

f  IS^  33. 

Johnson  v.  Monell,  1  Wool^.  390,  §§  4  a  i;  7  a  -i;  10  p  7; 

10  ql;   lib  23;   llf  5,  22. 

Johnson  v.  Phila.  W.  &  B.  R.  Co.  9  Fed.  Rep.  6,  §  10  k 

Jones  I'.  Amazon  Ins.  Co.  9  Ch.  L.  N.  68,  §§  11  ll  3;  11  j  i. 

Jones  V.  Andrews,  10  Wall.  327,  §  2  e  5;  5  b  3. 

Jones  V.  League,  18  How.  76,  §  1  o  3. 

Jones  V.  Oceanic  St.  Nav.  Co.  11  Blatchf.  406,  §§  14  b  6; 

24  a  2,  3,   H,  15. 

Jones  6'.  Seward,  41  Barb.  272;  S.  C.  40  Barb.  563;  26  How. 
Pr.  433;  17  Abb.  Pr.  377,  §§  1  b  6;  1  c  i;  11  C  34;  H  j 

2;25ce. 
Jordan  v.  Wallace,  5  Fish.  Pat.  Cas.  185,  §  1  g  23. 
Judson  V.  Macon  Co.  2  Dill.  213,  §  1  d  le. 
Juneau  Bank  v.  McSpeden,  5  i^iss.  64,  §  2  a  4. 
Justices  V.  Murray,  9  Wall.  274,  §  15  a  -i. 
Kaeiser  v.  Illinois  Cent.  R.  R.  Co.  6  Fed.  Rep.  1,  §§  10  j  2; 

lib  24;   14  a  9,  10,11. 

Kaiu  t'.  Texas  Pac.  R.  R.  Co.  3  Cent.  L.  J.  12,  §§  7  b  - ;  17 

e  1;  24  note;  24  a  lo. 
Kauouse  ?;.  Martin,  15  How.  198;  S.  C.  1  Blatchf.  149,  §§  1 

d  3;    4  b   4,    14     20;   4  c  3^   H;    10  e  8;   11  g  13    14    16;    11  ll 
15;  18  bl4. 
Karns  v.  Atlantic  &  O.  R.  Co.  10  Fed.  Rep.  309,  §§  10  j  9; 

10  n  2;   11  g  8;    18  b  1. 

Karrahoo  v.  Adams,  1  Dill.  344,  §§  1  a  3;  1  m  12. 

Kauffman  v.  McNutt,  3  Cent.  L.  J.  408,  §  17  e  1. 

Kearny's  Case,  12  Wall.  275,  §  20  a  2,  3. 

Keary  i'.  Bank,  10  Peters,  89,  §  1  p  21. 

Keith  V.  Levi,  2  Fed.  Rep.  743,  §§  4  b  12,  iS;  10  a  i'';  10  C 

9;  10  e  2;  1019,  14;  He". 
Kellogg  V.  Hughes,  3  Dill.  .357,  §§  11  f  20,  22,  24. 
Kelly  V.  Harding,  5  Blatchf.  502,  §  1  j  4. 


246  TABLE  OF  CASES. 

Kelly  V.  Virginia  P.  Ins.  Co.  3  Hughes,  449,  §  18  b  2. 

Kelsey  v.  Pennsylvania  Pv.  Co.  14  Blatclif .  89,  §  2  e  K 

Kendall  v.  U.  S.  12  Peters,  616,  §§  1  a  9;  1  b  4. 

Kennedy  v.  Gibson,  8  Wall.  498,  §  1 1  6. 

Kennedy  v.  Woolfolk,  1  Tenn.  453,  §  11  i  6. 

Kentucky  v.  Ohio,  24  How.  97,  §  1  i  ^. 

Kentucky  S.  M.  Co.  v.  Day,  2  Sawy.  468,  §  2  e  7. 

Kern  v.  Huidekoper,  2  Morr.  Trans.  597,  §§  11  j  *;  11  k  i; 

18  c  1. 
Kerting  v.  Amer.  Oleograph  Co.  10  Fed.  Rep.  17,  §§  7  b20; 

11  d-i;  17  es. 
Ketchum  v.  Black  Paver  Lum.  Co.  4  Fed.  Rep.  139,  §§  10 

ci;  lOo  10. 
Ketchum  v.  Farmers'  etc.  Co.  4  McLean,  1,  §  1  j  i^. 
Ketland  v.  Tlie  Cassius,  2  Dall.  365,  §  1  n  5. 
Kidder  v.  Featteau,  2  Fed.  Rep.  616,  §§  14  b  8;  17  C  i 
Kimball  v.  Evans,  93  U.  S.  320,  §  11  g  -3. 
King  V.  Oliver,  2  Wasli.  C.  C.  429,  §  1  m  13. 
King  V.  Wilson,  1  Dill.  555,  §  1  d  13,  u 
King  V.  Worthington,  3  Morr.  Trans.  101,   §§  10  g  8;  11 1 

1-5;  14  b  4. 
King  of  Spain  v.  Oliver,  2  Wash.  C.  C.  429,  §  10  k  26. 
Kingsburv  v.  Kingsbury,  3  Biss.  60,  §§  5  a  i;  11  a  i,  2;  17 

b  ^1;  18  a  11. 
Kirkham  v.  Hamilton,  6  Peters,  20,  §  1  p  20. 
Kirkpatrick  c.  Hopkins,  2  Miles,  277,  §§  11  b  so,  34.  n  c 

8,  9. 
Kitchen  v.  Strawbridge,  4  Wash.  C.  C.  84,  §§  1  j  5;  In  i". 
Knapp  V.  Railroad  Co.  20  Wall.  117,  §§  5  b  'J;  10  p  4;  11 

Knappen  v.  Troy  &  B.  R.  R.  Co.  20  Wall.  117,  §§  10  p  ■*; 
17  gv. 

Knickerbocker  L.  Ins.  Co.  v.  Gerbach,  70  Pa.  St.  150,  §§ 
10  j  5;  10pi6;  10  qO;  11  jio. 

Knott  V.  Southern  L.  Ins.  Co.  2  Woods,  479,  §  2  c  6 
Knowlton  v.  Congress  &  Empire  S.  Co.  13  Blatchf.  170, 

§§4e5;  11  di;  llf23. 
Knox  V.  Greenleaf,  4  Dall.  360,  §  1  j  6. 
Kohl  V.  U.  S.  91  U.  S.  367,  §  1  C  y. 

Kranshaar  v.  N.  H.  Steamboat  Co.  7  Robt.  357,  §  10  k  I6. 
Kulp  V  Ricketts,  3  Grant,  420,  §§  1  f  4;  4  a  i;  25  note;  25 

b  5, 
Ladd  V.  Tudor,  3  Wood.  &  M.  325,  §§  1  d  3;  4  b  1,  s  8,  9,  lO; 

4  c  3;  14  a  6;  14  d  13. 
Lafayette  Ins.  Co.  v.  French,  18  How.  404,  §  1  k  3. 
Laird  v.  Conn.  &  P.  Riv.  R  R.  Co.  55  N.  H.  375,  §  10  p  6. 
Lake  Shore  &  M.  S.  R.  Co.  v.  C.  &  W.  I.  R.  Co.  5  Fed. 

Rep.  19,  §  10  k  24. 


TABLE  OF  CASES.  247 

Lalor  V.  Dunning,  56  How.  Pr.  209,  §§  11  b  5;  H  h  3;  11  j 

Lamar  v.  Dana,  10  Blatcf.  34,  §  15  a  3. 

La  Mothe  Manuf.  Co.  v.  Nat.  Tube  Wks.  15  BlatcM.  432, 

§§5  note;    11  a  i3;  1114^  o. 
Langford  v.  Monteith,  102  U.  S.  155,  §  1  r^i. 
Lanuing  v.  Dolpb,  4  Wash.  C.  C.  624,  §  1  d  8. 
Lanning  v.  Lockett,  11  Fed.  Rep.  814;  S.  C.  10  id.  451,  §  10 

Lanz  v'.  Randall,  4  Dill.  425,  §§  4  d  6,  7,  8;  iq  d  5,  6. 

Latham  v.  Barney,  10  Ch.  L.  X.  11,  §  10  n  H 

Lauriate  v.  Stratton,  11  Fed.  Rep.  107,  §  10  u  30. 

Lawlor  v.  Walker,  14  How.  149,  §  1  c  2. 

Lee  V.  Lee,  8  Peters,  44,  §  10  i  5. 

Lee  V.  Watson,  1  W^all.  337,  §  1  d  i. 

Le  Grande  v.  United  States,  12  Fed.  Rep.  577,  note,  583, 

§25  a  8. 
Lehigh  Co.  v.  Central  R.  R.  Co.  4  Week.  IT.  187,  §  17  a  9. 
Leon,  Ex  parte,  1  Edm.  Sel.  Cas.  301,  §  1  b  9. 
Leonard  i\  Jones,  2  Edw.  136,  §  5  b  6. 
Leutz  V.  Butterfield,  7  Daly,  24;  1  Abb.  N.  C.  367,  §§  1  j  iS; 

101  5. 

Levi  V.  Columbia  L.  Ins.  Co.  1  Fed.  Rep.  206,  §  1  r  i^. 
Levy  V.  Fitzpatrick,  15  Peters,  167,  §  2  d  'i. 
Levy  V.  O'Neil,  14  Abb.  Pr.  N.  S.  63,  §  6  b  13;  6  c  ^2. 
Lewis  V.  Smythe,  2  Woods,  117,  §§  11  e  3,  26;  n  f  u 
Lewis  V.  White,  7  Ch.  L.  K  116,  §§  6  b  ";  10  q  i*. 
Lexington  v.  Butler,  14  Wall.  282,  §§  1  p  30;  10  1 1,  iS;  U 

g  4     6^ 

Liddle  v.  Thatcher,  12  How.  Pr.  294,  §  11  j  7. 

LifPord  V.  Beatty,  12  Ohio  St.  189,  §  5  b  lo. 

Liggett  V.  Miller,  1  Fed.  Rep.  203,  §  2  d  3. 

Little  V.  Hall,  18  How.  165,  §  1  II  5. 

Littlefield  v.  Perry,  21  Wall.  205,  §  1  g  2;  1  i  lo. 

Livermore  v.  Jenks,  11  How.  Pr.  479,  §  11  i  2,  10. 

Liverpool  Ins.  Co.  v.  McGuire,  52  Miss.  227,  §§  11  b  8;  11 

Livingston  v.  Gibbons,  4  Johns.  Ch.  94,  §§  5  a  15;  10  m  2; 

10  m  3. 
Livingston  v.  Jefferson,  1  Brock.  203,  §  1  a  3,  4^  8_ 
Livingston  v.  Van  Ingen,  1  Paine,  45;  S.  C  9  Johns.  507, 

§§la3,  5;  lj3, 

Lockhart  v.  Horn,  1  Woods,  634,  §  10  o  22. 

Locomotive  Co.  v.  Erie  Ry.  Co.  10  Blatchf.  292,  §  1  q  5. 

Loring  v.  Marsh,  2  Cliff.  469,  §  1  C  3. 

Lorman  v.  Clarke,  2  McLean,  5o8,  §  1  c  6,  n,  13^  15. 

Louisiana  State  Bank  v.  Morgan,  4  Martin  N.  S.  344,  §  11 


248  TABLE   OF   CASES. 

Louisville  etc.  R.  R.  Co.  v.  Letson,  2  How.  .314,  §  1  k  3. 

Low  V.  Waj-ne  Bank,  14  Blackf.  449,  §§  10  i  lO;  10  O  9. 

Ludlow  r.  Kidd,  3  Ohio,  48,  §§  5  b  «;  24  a  ^  5. 

Luther  r.  Borden,  7  How.  55,  §§  1  i  ';  23  a  2. 

Lyons,  Town  of,  r.  Lyons  Nat.  Bank,  8  Fed.  Bep.  371, 

§§19ai;  20  note;  20  a  2. 
Magee  v.  Union  Pac.  R.  R.  Co.  2  Sawy.  447,  §  24  a  9,  ". 
Magic  Ruffle  Co.  v.  Elm  City  Co.  13  Blatchf.  151,  §  1  g 

Magill't'.  Parsons,  4  Conn.  317,  §§  1  b  i;  111. 

Mahone  v.  Manchester  etc.  R.  Co.  Ill  Mass.  72,  §§  7  b  H; 

11  g  13. 

Mahoney  Min.  Co.  v.  Bennett,  4  Sawy.  289,  §  18  c  3. 
Main  v.  Second  Xat.  Bank,  6  Biss.  2(5,  §§  11  «;  2  c  3. 
Maine  v.  Gilman,  10  Fed.  Rep.  214,  §§  4  b  20;  10  j  6;  IQ  o 

4    5    16. 

Manuf.'Nat.  Bank  v.  Baack,  2  Abb.  U.  S.  232;   S.  C.  8 

Blatchf.  137,  §§112,  3;  24  a  5. 
Manville  &  W.  U.  Tel.  Co.  2  Cent.  L.  J.  GIB,  §  11  i  3. 
Marchand  v.  Frellson,  4  JNIorr.  Trans.  431,  §  1  r  6. 
Marion  t\  Ellis,  9  Fed.  Rep.  367;  S.  C.  10  Fed.  Rep.  410, 

§§lo4;  1016,12. 
Marshall  v.  Bait.  &  O.  R.  Co.  16  How.  314,  §§  1  k  3,  9-  10 

k2o. 

Martin  v.  Coons,  24  La.  An.  169,  §§  7  b  2I;  10  j  3;  10  p  lO; 

11  b  1^. 
Martin  v.  Hunter,  1  Wheat.  304,  §§  1  a  6,  - ;  1  b  H;  1  e  2; 

4  a  1,  5. 
Martin  v.  Kanouse,  1  Blatchf.  149;  S.  C.  15  How.  198,  §§  11 

13;  14  a  1. 
Martin  v.  Snowden,  18  Gratt.  100,  §§  10  c  ";  25  c  ". 
Martin  v.  Taylor,  1  Wash.  C.  C.  1,  §§  1  d  H;  4  c  S;  10  o  i9. 
Martindale  v.  Waas,  12  Fed.  Rep.  551,  §  11 1 12. 
Marye  v.  Strouse,  5  Fed.  Rep.  497,  §  20  b  1. 
Mason  v.  Boom  Comp.  3  Wall.  Jr.  252,  §  4  a  ^. 
Mass.  V.  R.  I.  12  Peters,  755,  §  1  i  ". 
Matthews  v.  Lyall,  6  McLean,  13,  §§  4  c  5;  11  g  15;  n  i 

6,  11. 
Mauidin  v.  Carll,  3  Hughes,  249,  §  2  b  1. 
Maxwell  v.  Levy,  2  Ball.  381,  §  1  o  3,  -. 
Maybury  v.  Madison,  1  Cranch,  137.  ^  1  e  6. 
Mayo  V.  Taylor,  8  Ch.  L.  N.  10,  §  11  h  3. 
Mayor  v.  Cooper,  6  Wall.  247,  §^  1  b  5;  1  e  2-  1  f  1,  2-  1  p 

8;  4  a  1;  10  f  2;  11  hi-;  17  f  5;  24  a  14. 
Mayor  etc.  v.  Cummins,  47  Ga.  321.  §  10  m  1. 
McBratney  v.  Usher.  1  Dill.  367,  §  14  a  4,  5. 
McCallon  v.  Waterman.  1  Flippen,  652;  4  Cent.  L.  J.  413, 

§§1012;  lle2,  23;   llfl. 


TABLE  OF  CASES.  249 

McCloskey  v.  CoLb,  2  Bond,  16,  §§  2  a  S;  2  e  * 
McComb  V.  Beard,  10  Blatchf .  350,  §  1  g  23. 
McCormick  v.  Humphrey,  27  Ind.  144,  §§  4  a  i;  25  note. 
McCormick  v.  Maylield,  27  Ind.  143,  §  25  note. 
McCoy  V.  Washington,  3  Phila.  290,  §§  1  k  i';  1  p  32. 
McCullough  V.  Sterling  S.  F.  Co.  4  Dill.  563,  §  11  d  H,  14. 
McDonald  v.  Smallev,  1  Peters,  620,  §  1  o  i. 
McGinnitv  v.  White,  3  Dill.  350,  §§  4  b  2,  i7-  6  b  5  lo-  6  c 

'  ;   10  e  3;   10  p  20;   10  q  8;   11  b  23. 

Mclntyre  v.  AVood,  7  Cranch,  504,  §§  1  a  9;  1  b  4. 

McKee  v.  Rains,  10  AVall.  22,  §  27  b  i3. 

McKinley  v.  Chicago  &  N.  W.  R.  R.  Co.  14  Iowa,  314, 

§  11  f  25.  ^ 

McLean  v.  Chicago  &  St.  P.  R.  Co.  16  Blatchf.  309,  §§  4  d 

12;  5  note;  6  note  i;  10  O  5  6-  n  a  9;  11  b  23    *3i.  n 

di;  17ci,  2,  3. 
McLeod  V.  Duncan,  5  McLean,  342,  §§  15  c  6;  16  a  3. 
McMicken  v.  Webb,  11  Peters,  25,  §  1  q  5. 
McMillin  v.  Barclay,  5  Fish.  Pat.  Cas.  189,  §  1  g  19,  20. 
McMurdy  V.  Insurance  Co.  4  Week.  No.  Cas.  18,  §§  11  b  6; 

11  g  15. 
McMurdy  v.  Conn.  G.  L.  Ins.  Co.  9  Ch.  L.  K.  324,  §§  17  a 

6;  17  c  4;   17  d  5. 

McStay  v.  Friedman,  92  U.  S.  723,  §  10  f  19. 

McWhinney  v.  Brinker,  64  Ind.  360,  §§  11  b  8;  11  h  2,  w 

Mead  v.  Walker,  15  Wis.  499,  §  6  c  23. 

Meade  v.  Beale,  Taney,  339,  §  1  c  i*. 

Meador,  Matt,  of,  1  Abb.  U.  S.  324,  §  1  a  u. 

Meadow  V.  M.  Co.  v.  Dodds,  7  Nev.  143,  §  7  b  3. 

Mercantile  T.  Co.  v.  Portland  &  O.  R.  Co.  10  Fed.  Rep. 

604,  §§  2  a  10;  2  e  12. 
Merch  &  Manuf.  Nat.  Bank  v.  Wheeler,  13  Blatchf.  218, 

§§  10  g  4,  6;    11  b  35;    11  k  7;    11  1  3. 

Merrill  v.  Petty,  16  Wall.  338,  §  4  b  i^. 

Merserole  v.  U.  P.  C.  Co.  6  Blatchf.  356,  §§  1  f  I6;  1  g  H;  1 

3  ^• 
Merwin  v.  Wexel,  49  How.  Pr.  115,  §§  1  p  2t-  6  b  6-  6  c  7- 
lOj  ',  10;  10pl2. 

Metropolitan  L.  Ins.  Co.  v.  Harper,  3  Hughes,  260,  §§  1  k 

15;  10  k  13. 
Meyer  v.  Delaware  R.  Constr.  Co.  100  U.  S.  457,  §§  11  b 

29,  30,  33;    11  d3;   11  h  4. 

Meyer  v.  Norton,  9  Fed.  Rep.  433,  §§  11  d  19;  11  e  27. 
Mich.  Cent.  R.  Co.  v.  Andes  Ins.  Co.  9  Ch.  L.  N.  34,  §  11 

dl8;  11  e6. 
Milledollar  v.  Bell,  2  Wall.  Jr.  334,  §  1  p  24. 
Miller  v.  Finn,  1  Neb.  254,  §§  6  c  i;  7  b  7;  10  j  lO;  10  n  4- 

11CS,21    31j   llf2     25. 


250  TABLE  OF  CASES. 

Miller  v.  Lynde,  2  Robt.  444,  §  5  b  6. 

Miller  v.  New  York,  13  Blatchf.  4G9,  §§  1  e  9;  1  f  14. 

Milligan,  Ex  parte,  4  Wall.  114,  §  1  c  i. 

Mills  V.  Brown,  16  Peters,  525,  §  1  C  2. 

Mining  &  Manuf.  Co.  v.  Bradley,  4  Morr.  Trans.  384,  §  18 

a  4. 
Mining  Co.  v.  Taylor,  100  U.  S.  37,  §  20  b  6 
Minnett  v.  M.  &  St.  P.  P.  P.  Co.  3  Dill.  460,  §§  7  b  9  12. 

lib  37;    11  f -^0^22. 

Minot  V.  Phila.  W.  &  B.  P.  Co.  2  Abb.  (U.  S.)  323,  §§  1  k  5; 

10  k  25. 
Mississippi  v.  Johnson,  4  Wall.  498,  §  1  i  1. 
Mississippi  &  Mo.  P.  P.  Co.  v.  Ward,  2  Black,  485,  §  1  d  i". 
Missouri  K.  &  T.  P.  Co.  v.  Texas  &  St.  L.  P.  Co.  10  Fed. 

Pep.  597.  §  10  k  21. 
Mitchell  v.  Walker,  36  Leg.  Int.  64,  §  1 1  n. 
Mix  V.  Andes  Ins.  Co.  74  N.  Y.  53,  §§  7  b  9  I8;  11  b  33;  H 

Moch  ■;'.  Va!  Fire'&  M.  Ins.  Co.  10  Fed.  Rep.  696,  §  2  c  5, 7. 

Moffat  V.  Soley,  2  Paine,  103,  §§  1  j  ";  1  q  1 

Moll  an  V.  Torrance,  9  Wheat.  537,  §  1  p  2^. 

Monuett  v.  Milwaukee  etc.  P.  P.  Co.  3  Dill.  460,  §  1  k  4, 

Mooney  v.  Agnew,  4  Fed.  Pep.  7,  §  11  e  34. 

Morgan  r.  ih\y,  19  Wall.  81,  §  20  a  1. 

Morse  v.  Ins.  Co.  20  Wall.  445;  30  Wis.  496,  §  4  a  i". 

Morton  v.  Mut.  L.  Ins  Co.  105  Mass.  141,  §§  1  k  i^^;  10  k  10. 

Moses  Taylor,  The,  4  Wall.  411,  §§  1  a  C;  lb  u. 

Mossman  r.  Higginson,  4  Dall.  12,  §§  1  a  8;  1  m  •*;  4  d  2; 

10  di. 
Mowery  v.  Indiana  &  C.  P.  P.  Co.  4  Biss.  80,  §  1  i  -. 
Movnahan  v.  Wilson,  6  Cent.  L.  J.  28,  §  11  g  22. 
Muller  V.  Dows,  94  U.  S.  444,  §  1  k  »,  ^o, 
Muns  V.  Dupont,  2  Wash.  C  C.  463.  §§  1  d3;  4  b  6,  «;  4  c8. 
Murphy  v.  Howard,  Hemp.  205,  §  1  d  10. 
Murray  v.  Holden,  2  Fed.  Pep.  740,  §§  7  b  20;  H  d  1,  5. 
Murray  v.  Patrie,  5  Blatchf.  343,  §§  4  a  1,  4,  12;  17  a  5. 
Myers  v.  Dorr,  13  Blatchf.  22,  §§  2  b  3;  2  c  1,  2. 
Nat.  Bank  of  Lvndon  v.  Wells  Piv.  Manuf'g  Co.  7  Fed. 

Pep.  750,  §  iO  m  ic,  iv. 
National  Union  B'k  v.  Dodge,  11  The  Reporter,  641,  §§  10 

j  0;  10  o  21.  23;  11  i  8;  11  k  1;  14  d  1;  17  g  5;  18  a  s. 
Neal  V.  Delaware,  103  U.  S.  370,  §  25  b  n,  12. 
Nesuiith  v.  Sheldon,  6  How.  41,  §  23  a  i". 
Nesinith  v.  Calvert,  1  Wood.  &  M.  34,  §§  1  g  •»;  Ik  2. 
Neudecker  r.  Posenbaum,  11  The  Reporter,  254,  §  10  g  ". 
Nevins  v.  Johnson,  3  Blatchf.  80,  §  1  g  1. 
Newby  v.  Oregon  Cent.  R.  P.  Co.  1  Sawy.  63,  §  1  o  1. 
New  England  Screw  Co.  v.  Bliven,  3  Blatchf.  240,  §§  15  b 

2  6.  16  a  4. 


TABLE   OF   CASES.  251 

New  Jersey  Zinc  Co.  v.  Trotter,  23  Int.  Eev.  Rec.  410 

§§  1  i  7;  5  note;  6  note  i;  6  a  4;  7  a  2;  lo  j  7,  lO;  10 

ni9. 
New  Orleans  v.  Winter,  1  Wheat.  91,  §§  1  j  8,  9;  1  m  4;  10 

p  18. 
N.  O.  City  R.  R.  Co.  v.  Crescent  City  R.  R.  Co.  5  Fed. 

Rep.  160,  §§15c5;  18  c  8. 
New  Orleans  etc.  Co.  v.  Recorder,  27  La.  An.  291,  §§  5  b 

6;  1011:  lib  8;   llhl4. 
New  Orleans  M.  &  T.  R.  Co.  v.  Mississippi,  102  U.  S.  135, 

§§  1  f  1:  4  a  ";  4  c  W;  10  f  i,  2;  U  b  W;  11  g  14. 
New  Orleans,  M.  &  T.  R.  Co.  v.  State,  13  Ch.  L.  N.  93, 

§  10  f  5. 

N.  Y.  r.  Conn.  4  Dall.  1,  §  1  i  7,  s. 

N.  Y.  Life  Ins.  Co.  v.  Best,  23  Ohio  St.  105,  §§  4  a  W;  10 

k  12. 
New  York  Piano  Co.  v.  New  Haven  Steamboat  Co.  2  Abb. 

Pr.  N.  S.  357,  §§  1  k  i2;  10  k  W;  11  h  9. 
N.  Y.  Silk  Manuf.  Co.  v.  Second  Nat.  Bank,  10  Fed.  Rep. 

204,  §§  4  b  22;    10  e  6;    10  ll  4;    Hi  4. 

New  York  Warehouse  etc.  v.  Loomis,  122  Mass.  431,  §§  11 

di.  8;  He  22. 
Noell  V.  Mitchell,  4  Biss.  346,  §  1  p  is. 
Norris  v.  Jackson,  9  Wall.  125,  §  20  b  i,  2,  5^  7. 
Norris  v.  Mineral  Point  Tunnel,  7  Fed.  Rep.  272;  S.  C.  11 

The  Reporter,  272,  §§  5  note;  11  a  8;  H  b  37,  41. 
North  V.  McDonald,  1  Biss.  57,  §  2  b  s. 
North  Riv.  Steamboat  Co.  v.  Hoffman,  5  Johns.  Ch.  299, 

§§6bi2;  lOkn. 
Northern  Ind.  R.  Co.  v.  Michigan  Cent.  R.  Co.  15  How. 

233,  §  2  C  1. 
Northern  Line  P.  Co.  v.  Binninger,  70  111.  571,  §§  10  k  17; 

24  a  3. 
Northwestern  D.  Co.  v.  Corse,  4  Biss.  514,  §  16  a  3. 
Norton  v.  Hayes,  4  Denio,  245,  §§  5  a  i*->;  5  b  iS;  H  b  28. 
Nugent  V.  State,  18  Ala.  521,  §  1  a  is. 
Nye  V.  Nightingale,  6  R.  I.  439,  §§  6  c  24-  10  b  10. 
Oakey  v.  Bank,  14  La.  515,  §§  1  k  3;  11  h  9. 
Ober  V.  Gallagher,  93  U.  S.  199,  §§  1  p  st;  5  b  37;  10  n  23. 
Ohio  &  M.  R.  Co.  V.  Wheeler,  1  Black,  286,  §§  1  j  i;  1  k  3, 

4,  7;    10  k  25. 

Orner  v.  Saunders,  3  Dill.  284,  §  10  f  n. 

Orosco  V.  Gagliardo,  22  Cal.  83,  §§  4  d  3;  10  d  3  5;  10  j  9- 

11  C  18;  11  h  7.  9. 

Osborn  v.  Bank  of  U.  S.  9  Wheat.  738,  §§  1  b  4,  6;  1  c  1,  5• 
l  f  i;  1  i  8;  1 1 1;  1  m  2;  10  f  7;  11  b  48. 
Osborn  v.  Osborn,  5  Fed.  Rep.  389,  §  11  f  is. 
Osborne  v.  Brooklyn  City  R.  R.  Co.  5  Blatchf .  366,  §  1  o  1. 


252  TABLE  OF  CASES. 

Osgood  V.  Chicago  etc.  E.  R.  Co.  2  Cent.  L.  J.  275,  283;  7 

Ch.  L.  N.  2il,  §§  17  b  ";  18  b  ". 
Osgood  V.  Kailroad  Co.  6  Biss.  330,  §§  6  note  -;  10  o  26; 

11  b  35,  4J;  11  j  1;  11  k  1,  ^;  12  note;  13  note;  14  d  ». 
Oswald  t\  K.  Y.  2  JJall.  415,  §  1  i  ^. 
Ouachita  Co.  v.  Wolcott,  2  Morr.  Trans.  548;  S.  C.  11  Fed. 

Rep.  623,  §  11 1  13. 
Owen  V.  N.  Y.  Life  Ins.  Co.  1  Hughes,  322,  §  1  k  i^. 
Pacific  R.  R.  Co.  v.  Ketchum,  101  U.  S.  298,  §  18  C  ^2. 
Packer  v.  Nixon,  10  Peters,  410,  §  23  a  9. 
Palmer  v.  Call,  4  Dill.  5GG,  §  11  d  w,  15,  it. 
Parish  v.  Ellis,  16  Peters,  453,  §  1  c  -i. 
Park  Bank  v.  Nichols,  4  Biss.  315,  §  1 1  3. 
Parker  v.  Hotchkiss,  1  Wall.  Jr.  269,  §  2  a  4,  ». 
Parker  v.  Overman,  18  How.  137;  S.  C.  Hemp.  692,  §§  10  a 

7,  IV;  11  b  1^;  11  1  9,  11;  14  a  8;  17  b  1^. 
Parrott  v.  Alabama  Gold  L.  Ins.  Co.  5  Fed.  Rep.  391,  §§  2 

ciO;  11  a  5. 
Parsons  v.  Bedford,  3  Peters,  433,  §  1  c  4,  5. 
Parsons  v.  Greenville  &  C.  R.  R.  Co.  1  Hughes,  279,  §  1  k  5. 
Parsons  v.  Lyman,  5  Blatchf.  170,  §§  1  a  ■*;  1  c  ". 
Partridge  v.  Insurance  Co.  15  AVall.  573,  §§  11  k  6;  11 1  s. 
Patterson  v.  Boom  Co.  3  Dill.  465;  S.  C.  98  U.  S.  403,  §  10 

a". 
Patterson  v.  Chapman,  13  Blatchf.  395,  §  10  n  i". 
Patrie  v.  Murrav,  43  Barb.  323,  §  25  c  4. 
Pawlet,  Town  of,  v.  Clark,  9  Crunch,  292,  §  12  a  i,  7. 
Payne  v.  Hook,  7  Wall.  425;  14  Wall.  252,  §§  1  c  7,  13;  1  r 

-;  10  a  1^. 
Payson  v.  Dietz,  5  Cli.  L.  N.  434,  §  10  f  9. 
Pechner  v.  Phoenix  Ins.  Co.  95  U.  S.  183,  §§  5  b  iS;  11  b  20. 
Pennoyer  v.  Xeff,  95  U.  S.  714,  §  2  c  i«\ 
Pennsylvania  v.  Wheeling  Br.  Co.  13  How.  520,  §  1  i  12, 
Penrose  v.  Penrose,  1  Fed.  Rep.  479,  §  11  li  i''. 
People  V.  Brinkerhoff,  68  N.  Y.  259,  §  1  e  5. 
People  V.  Detroit  Sup.  Ct.  Judges,  41  Mich  31,  §  18  C  s. 
People  V.  Judges,  2  Denio,  197,  §§  4  b  5,  ■ ;  10  e  s. 
People  V.  Judges,  21  Mich.  577,  §§  1  k  i^;  11  j  5. 
People  V.  Murray,  5  Parker  Cr.  C.  577,  §§  25  b  i;  27  e  1. 
People  V.  Superior  Court,  34  111.  356,  §§  5  b  iS;  11  b  7  24. 

11  h  1,  '■>,  11,  1^. 
Perkins  v.  Morgan,  27  La.  An.  229,  §  5  b  1. 
Perry  v.  Corning,  6  Blatchf.  134,  §  1  g  1,  i^. 
Perry  v.  Littletield,  2  Fed.  Rep.  464,  §  1  g  ^. 
Perry  v.  Sharpe,  8  Fed.  Rep.  24,  §§  15  a  ";  16  a  6. 
Peters  v.  Peters,  41  Ga.  242,  §§  6  c  20,  21;  15  c  i;  16  a  s. 
Petrocokino  v.  Stuart,  37  Leg.  Int.  30,  §  1  m  7. 
Pettilon  V.  Noble,  7  Biss.  449,  §§  1 1 «;  10  f  S;  10  gS;  11 

e  16;  24  a  \ 


TABLE  OF  CASES.  253 

Pettit  V.  Hope,  2  Fed.  Eep.  623,  §§  1  p  3i,  32. 

Pettus  V.  Georgia  R.  R.  Co.  3  Woods,  620,  §  10  a  8. 

Peyton  v.  Bliss,  1  Woolw.  170,  §§  10  f  21;  27  a  5;  27  b  1,  2. 

Philadelpliia  t".  Collector,  5  ^Vall.  720,  §§  27  a  4;  27  b  6. 

Phillips  V.  Moore,  100  U.  S.  208,  §  20  note. 

Phoenix  Life  Ins.  Co.  v.  Saettel,  33  Ohio  St.  278,  §§  11  b  si- 
ll d  3,  ^. 

Picquet  v.  Swan,  5  Mason,  35,  §§  1  m  4;  1  q  1,  2;  2  b  1,  ' ; 
10  p  IS. 

Pierpont  v.  Fowle,  2  Wood.  &  M.  23,  §§  1  c  3,  I6;  l  h  1. 

PoUard  v.  Dwight,  4  Cranch,  421,  §§  1  q  3;  2  b  4-  2  d  S; 
17  a  5;  17  b  6;  17  g  6. 

Polte  V.  Derby,  5  McLean,  328.  §  1  h  5. 

Pomeroy  v.  Kew  York  &  N.  H.  P.  Co.  4  Blatchf .  120,  §§  1 
k  -i;  2  c  6. 

Pond  v.  Sibley,  7  Fed.  Eep.  129,  §  10  m  le,  n 

Poppe  V.  Langford,  3  Morr.  Trans.  702,  §  18  a  19. 

Porter  v.  Jane'sville,  3  Fed.  Ptep.  617,  §  1  p  ■2''. 

Portland,  City  of,  v.  Oregonian  R,  Co.  7  Pac.  Coast  L.  J. 
376,  §  15  c  3. 

Postmaster-General  v.  Cross,  4  Wash.  C.  C.  326,  §§  1  d  i-: 

4  C  S;   10  O  19. 

P.  M.  Genl.  v.  Early,  12  Wheat.  136,  §116. 
Potter  V.  Nat.  Bank,  102  U.  S.  163,  §  11 1 15. 
Pratt  V.  Albright,  9  Fed.  Rep.  634,  §§  10  b  1^;  10  h  2;  11 

e3i;17e5. 
Pratt  V.  Nonham,  5  Mason,  95,  §  1  c  '^. 
Prentiss  v.  Barton,  1  Brock.  389,  §§  1  j  ';  18  a  3. 
Prentiss  v.  Brennan,  2  Blatchf.  164,  §  1  m  4,  6. 
Price  V.  Foreman,  12  Fed.  Rep.  641,  §  10  u  7,  n,  27^  28. 
Price  V.  Sommers,  8  Ch.  L.  N.  290,  §§  17  b  3,  12,  i3;  27  a  K 
Pugsley  V.  F.  S.  &  T.  Co.  2  Tenn.  Ch.  130,  §§  5  a  8,  15.  5  b 

1;  lib  28. 
Quigley  v.  C.  P.  R.  R.  Co.  11  Kev.  350,  §§  1  k  4;  7  b  s,  n. 
Railroad  Co.  v.  Harris,  12  Wall.  65,  §§  1  j  9;  1  k  4. 
Railroad  Co.  v.  Ketchum,  101  U.  S.  289,  §  4  c  w. 
Railroad  Co.  v.  Koontz,  3  Morr.  Trans.  34,  §§  10  k  1^ ;  11 

e33;   11  gl;    11115;   14  b  4. 

Railroad  Co.  v.  Letson,  2  How.  554,  §  1  j  12. 

Railroad  Co.  v.  Mississippi,  102  U.  S.  135,  §§  1  e  i;  1  f  i;  6 

note  1;  10  f  ",  iS;  11  i  i2;  17  a  S;  17  g  i. 
Railroad  Co.  v.  Pierce,  27  Ohio  St.  155,  §§  4  a  lO;  10  k  12. 
Railroad  Co.  v.  Rock,  4  Wall.  180,  §  1  c  2. 
Railroad  Co.  v.  Wiswall,  23  Wall.  507,  §  17  g  1. 
Railway  Co.  v.  Ramsey,  22  Wall.  328,  §§  11  b  39;  11 19. 

14  a":  17  g  8. 
Railway  Co.  v.  Whitton,  13  Wall.  270,  §§  1  c  lO;  1  k  s  8 

10;  4  a  1,  5;  10  c  11;  10  k  9,  20;  u  g  8.' 
Desty  Removal.— as. 


25i  TABLE   OF   CASES. 

Raleau  v.  Bernard,  3  Blatclif.  244,  §  1  m  6. 

Kalpli  v.  Claiborne,  2  Mart.  (La.)  116,  §  11  j  ^ 

Eamsey  v.  Coolbaugh,  13  Iowa,  104,  §§  8  a  i;  10  C  W;  11 

hi»;  11  k^. 
Eanlett  v.  Collier  White  Lead  Co.  30  La.  An.  pt.  1,  56; 

§  10  b  5,  6. 
Ratlibone  Oil  Tract  Co.  v.  Eauch,  5  W.  Ya.  79,  §§  4  e  3; 

lib  ^5;  11  f^. 
Rawle  V.  Phelps,  8  Fed.  Eep.  356,  §  4  d  u. 
Kedmond  v.  Russell,  12  Johns.  153,  §  5  a  s  3,  4^  i3j  18  a  n. 
Reed  v.  Bertrand,  4  Wash.  C.  C.  514,  §  1  j  ^. 
Reed  v.  Calderwood,  22  Cal.  463,  §  5  b  «. 
Reife  v.  Rundle,  103  U.  S.  222,  §  1  k  i^. 
Removal  Cases,  100  U.  S.  457,  §§  4  c  i'';  6  note  2-  10  g  4; 

10  j    1,   3,    6;   10   O  1;   11  C  ^;   11  e  4;   11  g  14    15,  16;  11 

19. 

Resp.  V.  Cobbet,  3  Dall.  467,  §§  10  C  -,  ^:  10  d  i,  lo. 

Reynolds,  Ex  parte,  3  Hughes,  559,  §  25  c  n. 

Rhode  Island  v.  Massachusetts,  12  Peters,  657,  §  1  a  2. 

Rice  V.  Houston,  13  AN'all.  66,  §  4  d  i^. 

Richardson  v.  Mattison,  5  Biss.  31,  §  1  O  3. 

Richardson  v.  Packwood,  1  Martin  N.  S.  290,  §§  5  a  i';  5 

b  11. 
Richmond  v.  Dreyfous,  1  Sum.  131,  §  2  b  i. 
Risley  v.  Indianapolis  B.  &  W.  R.  R.  Co.  8  N.  Y.  Supr. 

202,  §  5  b  11. 
Rison  V.  Cribbs,  1  Dill.  184,  §  10  c  3. 
Robb  V.  Parker,  3  Rich.  N.  S.  60,  §  10  q  3. 
Robbins  v.  Fireman's  F.  Ins.  Co.  16  Blatchf.  232,  §§  21 

note;  23  a  i. 
Roberts  v.  Carrington,  2  Hall.  649,  §  11  c  i. 
Roberts  v.  Nelson,  8  Blatchf.  74,  §§  4  b  3,  i5,  is,  20j  4  c  4. 
Robinson  v.  Campbell,  3  W^heat.  212,  §  1  c  5,  n  13, 
Robinson  v.  Potter,  43  N.  H.  188,  §§  5  a  9,  iS;  11  c  «;  18 

a  11. 
Robinson  v.  Mut.  Ben.  L.  Ins.  Co.  16  Blatchf.  201,  §  20  a  ^ 
Rogers  v.  Rogers,  1  Paige,  183,  §  10  b  1,  w. 
Romie  v.  Cassanova,  91  U.  S.  380,  §  10  f  19. 
Root  V.  Lake  Shore  &  Mich.  S.  R.  Co.  11  Fed.  Rep.  349, 

§  10  f  15. 

Roseufleld  v.  Adams  Expres^  Co.  21  La.  An.  233,  §§  1  k  3; 

10  k  IS;  lib  31;  llglS. 

Rubber  Co.  v.  Goodyear,  9  WaU.  809,  §  10  b  is. 

Ruble  V.  Hyde,  3  Fed.  Rep.  330,  §§  10  j  6;  10  o  iS;  10  q  w. 

Ruckmanu  r.  Palisades  L.  Co.  1  Fed.  Rep.  367j  §§  6  note 

2;    lOuSS;    lOolS. 

Rundle  y.  L>el.  &  R.  Can.  Co.  14  How.  80,  §  1  k  3. 
Runkle  v.  Lamar  Ins.  Co.  2  Fed.  Rep.  9,  §  2  c  s.  6. 


TABLE  OF   CASES,  255 

Rush  r.  Cobbett,  2  Yeates,  275,  §  4  b  4,  6^  n. 

Ryan  v.  Lee,  10  Fed.  Rep.  917,  §  1  g  8. 

Ryan  v.  Thomas,  4  Wall.  003,  §  1  c  ^. 

Ryan  v.  Young,  11  Ch.  L.  N.  353,  §  10  n  4. 

Ryan  v.  Young,  20  Alb.  L.  J.  79;  8  The  Reporter,  229,  §  17 

a  3. 
Sackett  v.  Davis,  3  McLean,  101,  §  1  p  is. 
Saddler  v.  Hudson,  2  Curt.  6,  §  2  b  i. 
Sadler  r.  Hoover,  7  How.  6i6,  §  23  a  12,  13. 
Salem  &  Lowell  R.  R.  Co.  v.  Boston  &  Lowell  R.  R.  Co. 

21  Law  Reporter,  210,  §§  27  d  \  i3;  27  e  '. 
Salt  Co.  V.  Wilkinson,  8  Blatchf.  30,  §§  27  b  6;  27  d  9. 
Sanders  v.  Logan,  2  Fish.  Pat.  Cas.  107,  §  1  g  i5. 
Sands  v.  Smith,  1  Abb.  U.  S.  368;  S.  C.  1  Dill.  290,  §§  7  b 

5,  ^;  10  m  5,  6;    10  p  1,  2;  10  q  5,  6,  10;    H  g  4  5;  H  1  5.  6; 

Saunders  v.  Gould,  4  Peters,  392,  §  23  a  i". 

Savings  Bank  v.  Benton,  2  Met.  (Kv.)  240,  §§  5  a  s-  5  b  17. 

11  bis,  21,  24.    11  h  13^  15. 

Sawyer  v.  Switzerland  M.  Ins.  Co.  14  Blatchf.  451,  §§  10  d 

2;  10  j  9. 
Sayles  v.  N.  W.  Ins.  Co.  2  Curt.  212,  §§  10  a  9;  10  k  2",  29. 

11  g  4^  5^  18. 

Sayles  v.  Richmond  F.  &  P.  R.  R.  Co.  3  Hughes,  172,  §  1 

Schollenberger,  Ex  parte,  96  U.  S.  369,  §  2  c  e. 
Schoonmaker  v.  Gilmore,  102  U.  S.  118,  §  1  r  24. 
Schwab  V.  Hudson,  11  Ch.  L.  N.  372,  §  10  q  12. 
Scott  V.  Clinton  &  Springfield  R.  R.  Co.  6  Biss.  529;  S.  C. 

8  Ch.  L.  N.  210,  §§  1  i  ■■>;  10  a  2I;  11  d  s,  s  9  is;  u  fei; 

14  d  5;  24  a  21. 
Scott  V.  Otis,  10  Ch.  L.  N.  41,  §  11  a  4. 
Scott  V.  Sanford,  19  How.  393,  §  1  a  3. 
Scovill  V.  Shaw,  4  Cliff.  549,  §  1  r  -5. 
Scupps  V.  Campbell,  3  Cent.  L.  J.  54,  §  18  b  u. 
Seckel  r.  Backhaus,  7  Biss.  354,  §i^  1  o  " ;  1  p  26. 
Second  Xat.  Bank  r.  X.  Y.  Silk  Mauuf.  Co.  11  Fed.  Rep. 

532,  §§  10  k  28;  24  a  20. 
Segee  v.  Thomas,  3  Blatchf.  11,  §§  2  a  i3;  2d';  2  e  ^. 
Sere  v.  Pitot,  6  Cranch,  332,  §  1  p  3,  'J. 
Sew.  Mach.  Cos.'  Cas.   18  Wall.  553:  S.  C.  110  Mass.  70, 

§§  1  j  14;  6  b  5;  10  j  w;  10  o  1;  10  p  2,  is,  22;  10  q  n. 
Seymour  v.  Phillips,  7  Biss.  460,  ^  1  f  i5. 
Shaft  V.  Phoenix  Mut.  L.  Ins.  Co.  67  K  Y.  544,  §§  1  k  4- 

11  b  1,   33;    11   g  15^    IT;    11  i  5;    18  b  13. 

Shainwald  v.  Lewis,  5  Fed.  Rep.  510,  §  2  b  6. 
Sheirburn  v.  DeCordova,  24  How.  423,  §  1  C  4. 
Shelby  v.  Hoffman,  7  Ohio  St.  453,  §§lk3;  5a  24;  5b6; 
10  p  19;  11  f  6. 


256  TABLE   OF  CASES. 

Sheldon  v.  Keokuk  N".  W.  Line  Pack  Co.  1  Fed.  Eep.  789, 

§  10  O  13,  22. 

Sheldon  v.  Sill,  8  How.  441,  §§  1  a  S;  1  b  4;  1  p  2,  28. 
Shelton  v.  Tifflin,  6  How.  162,  §§  1  k  i;  10  d  6. 
Shepard  v.  K.  N.  L.  Pack.  Co.  12  Ch.  L.  N.  220,  §  10  O  21. 
Shepherd  v.  Young,  1 T.  B.  Mon.  203,  §§  10  f  22;  11  j  8j  12 

a  8. 
Sherman  v.  Clark,  3  McLean,  91,  §  1  d  7,  8. 
Sherman  v.  Windsor  Manuf.  Co.  11  Fed.  Eep.  852,  §  17 

b  16. 
Shields  v.  Barrow,  17  How.  130,  §§  5  b  3;  10  n  23. 
Short  V.  Wilson,  1  Bush,  350,  §§  18  a  H;  25  b  9;  25  c  7. 
Shuford  V.  Cain,  1  Abb.  U.  S.  302,  §  1  p  is,  21. 
Shumway  ■;.  C.  &  L  R.  R.  Co.  4  Fed.  Eep.  385,  §§  10  a  25; 

10U24. 

Shute  V.  Davis,  Peters  C.  C.  431,  §  1  j  4. 

Siebrecht  v.  Butler,  2  Abb.  Pr.  N.  S.  361,  §  25  c  2. 

Silliman  v.  Hudson  Eiv.  E.  Co.  1  Black,  582,  §  23  a  20. 

Silsby  V.  Foote,  1  Blatchf .  445,  §  19  a  2. 

Sims  V.  Sims,  17  Blatchf.  369,  §§  10  g  C;  11  f  22. 

Skeen  v.  Huntington,  25  Ind.  510,  §  25  b  ». 

Slason  V.  Wright,  14  Vt.  210,  §  10  b  1^. 

Small  V.  King,  5  McLean,  147,  §  1  P  -i. 

Smith,  Ex  parte,  94  U.  S.  455,  §  1  f  12. 

Smith  V.  Allyn,  1  Paine,  486,  §  1  a  3. 

Smith  V.  Baker,  31  Leg.  Int.  126,  §  1  g  -3,  25. 

Smith  V.  Butler,  38  How.  Pr.  192,  §  5  b  iv. 

Smith  V.  Clapp,  15  Peters,  125.  §  1  p  is. 

Smith  V.  Horton,  7  Fed.  Eep.  270;  11  The  Eeporter,  423, 

§§   10]  6;    lib  6,  29. 

Smith  V.  Jackson,  1  Paine,  453,  §  1  b  2. 

Smith  V.  Kernochen,  7  How.  198,  §  1  O  1. 

Smith  V.  McKay,  4  Fed.  Eep.  353,  §§  10  j  C;  10  o  4,  26. 

Smith  V.  Eailroad  Co.  99  U.  S.  398,  §  1  c  6. 

Smith  V.  Eines,  2  Sum.  338,  §§  5  b  1,  6;  6  C  i";  10  i  7;  18 

a  2,  10. 
Smith  V.  Schwed,  11  The  Eeporter,  730,  §§  15  c  2,  4;  13  b 

5,  S;  18  c  10. 
Smith  V.  St.  Louis  M.  L.  Ins.  Co.  2  Tenn.  Ch.  656,  §§  10  a 

2S;    10  O  6,  26. 

Smith  V.  Tuttle,  5  Biss.  159,  §  2  a  3. 

Sneed  v.  Browulow,  4  Cold.  253,  §  11  f  25. 

Soci.  for  Prop.  Gosp.  v.  New  Haven,  8  Wheat.  464,  §  1  m  8. 

Soustibv  V.  Keeley,  11  Fed.  Rep.  578,  and  note;  §  11 1 13. 

Southern  &  A.  T.  E.  Co.  v.  New  Orleans,  M.  &  T.  E.  Co. 

2  Cent.  Law  J.  88,  §  2  c  6. 
South  worth  v.  Adams,  11  The  Eeporter,  46,  §  10  c  is. 
Spraggins  v.  County  Court,  Cooke,  160,  §  14  d  i3. 


TABLE   OF   CASES.  257 

Stanbrough  v.  Griffin,  52  Iowa,  112,  §  10  i  i. 

St.  Anthony's  F.  W.  P.  Co.  v.  King  Bridge  Co.  23  Minn. 

186,  §§  lie  12;  llglS;  11  j  1,  10. 
St.  Lawrence  A.  &  T.  K.  R.  Co.  v.  Indiana  &  St.  L.  R.  H. 

Co.  12  Cb.  L.  X.  73,  §  1  k  w. 
St.  Louis  Nat.  Bk.  v.  Brinkmau,  1  Fed.  Rep.  46,  §  1 1  6,  9. 
Stanley  v.  Cliicago,  R.  I.  &  P.  R.  R.  Co.  3  Cent.  L.  J.  430; 

S.  C.  62  Mo.  508,  §§  1  k  3;  4  c  5,  U;  10  e  §;  11  b  3T;  11 

Stapleton  'v.  Reynolds,  9  Ch.  L.  N.  33,  §§  10  o  5,  w,  iS;  u 

e  ''. 
State  V.  Babcock,  4  Wash.  C.  C.  345,  §§  1  k  iS;  17  b  6;  18 

a  2. 
State  V.  Bliss,  3  Grant,  427,  §  25  b  6. 
State  V.  Bolton,  11  Fed.  Rep.  217,  §§  27  c  3,  4;  27  d  n. 
State  V.  Bowen,  8  Rich.  N.  S.  382,  §§  10  a^;  10  c  '-^i;  10 f  3. 
State  V.  C.  &  A.  R.  R.  Co.  6  Biss.  107,  §§  14  d  i6;  18  a  n. 
State  V.  Common  Pleas,  15  Ohio  St.  377:  3  Ohio,  49,  §§  5  b 

6;  25  note;  25  b";  25  c  i,  2. 
States.  Davis,  12  S.  C.  528,  §  27  c  i. 
State  V.  Deaver,  77  N.  C.  555,  §  27  note. 
State  V.  Doyle,  40  Wis.  175,  220,  §§  1  k  i^;  4  a  H;  IQ  k  ^K 
State  V.  Dubuclet,  10  Ch.  L.  X.  132,  §  25  a  §. 
State  V.  Duulap,  65  X.  C.  491,  §§  25  note;  25  a  «. 
State  V.  Emerson,  8  Fed.  Rep.  411.  §  27  a  i. 
State  V.  Gaines,  3  Woods,  342,  §  25  a  «. 
State  V.  Gibbons,  1  South,  44,  §  14  d  2. 
State  V.  Gleason,  12  Fla.  190,  §§  25  a  ^^;  25  c  3, 
State  V.  Grand  Trunk  Railway,  3  Fed.  Rep.  887,  §  10  C  2,  3. 
State  V.  Hoskins,  77  K.  C.  530,  §§  27  note;  27  c  ";  27  e  i. 
State  V.  Johnson,  29  La.  An.  399,  §§  10  c  20 ;  17  g  1. 
State  V.  Lewis,  12  Fed.  Rep.  1,  §§  1  i  u,  ^2;  10  d  W;  10  m 

State  t'.  McBride,  Rice,  400,  §  1  b  «. 

State  v.  Port,  3  Fed.  Rep.  117,  §§  27  note;  27  a  2;  27  c  2, 

4,  5,  6;   27  d  12. 

State  V.  Small,  1  Rich.  S.  C.  262,  §  25  a  s. 

State  V.  Texas  Pac.  R.  R.  Co.  3  Woods,  308,  §  10  m  12. 

State  V.  Tiedermann,  10  Fed.  Rep.  20,  §  11  C  28. 

State  V.  Trust  of  University,  5  Nat.  Bk.  Reg.  466,  §  1  i  n. 

State  Ins.  Co.  of  Alabama,  Ex  parte,  5  Ala.  464,  §  17  g  2. 

State  Lottery  Co.  v.  Fitzpatrick,  3  Wood,  222.  §  1  e  7. 

State  Tax  Laws,  14  Op.  Att.-Gen.  199,  §  1  r  23. 

Steiger  v.  Bonn,  4  Fed.  Rep.  17,  §  2  a  6. 

Stevens  v.  Cady,  2  Curt.  2U0,  §  1  h  «. 

Stevens  v.  Gladding,  17  How.  447,  §  1  h  6. 

Stevens  v.  Mack,  5  Blatchf.  514,  §§  27  a  S;  27  b  6. 

Stevens  v.  Phcenix  Ins.  Co.  41  N.  Y.  149,  §§  1  k  i2;  4  c  H; 

lOkie,  17;  llgl4,  10.  iihii. 


258  TABLE   OF   CASES. 

Stevens  v.  Richardson,  13  The  Reporter,  678:  S.  C.  9  Fed. 

Rep.  191,  §§  2  a  1;  4  c  6,  7;  lo  o  ^\  24;  ii  a  9,  U;  11  c 

w  ^''';  17  a  3, 
Stevenson  r.  Wilson,  19  Wall.  572,  §  11  f  --,  --',  -^. 
Stewart  v.  Mordecai,  40  Ga.  1,  §§  6  a  i,  ^;  6  b  &;  7  b  19;  11 

Stillwell  V.  Empire  F.  Ins.  Co.  4  Cent.  L.  J.  463,  §  2  c  6. 
St.  Luke's  Hosp.  v.  Barclay,  3  Blatchf.  259,  §  1  m  3. 
Stoker  v.  Leavenworth,  7  La.  390,  §§  5  a  ^^;  7  b  ^;  11  b  20; 

11  h  9. 
Stough  V.  Hatch,  8  The  Reporter,  7;  S.  C.  16  Blatchf.  233, 

§§lldi''';  lie  w. 
Straiider  v.  West  Virginia,  100  U.  S.  303,  §§  25  note;  25  a 

^^  25  b  2,  4,  12. 
Strawbridge  r.  Curtis,  3  Cranch,  267,  §  1  j  ^^ 
Strother  v.  Lucas,  6  Peters,  768;  12  Peters,  410,  §  1  C  4. 
Suydam  v.  Adni'rs  of  Hovt,  1  Dutch.  230,  §  17  g  ^. 
Suvdam  v.  Ewing,  2  Blatchf.  359;  §  11 1 ",  ^  ^. 
Suydam  v.  Smith,  1  Denio,  263,  §§  5  a  iS;  He  is. 
Swann  v.  Mvers,  70  X.  C.  101,  §  10  j  i". 
Sweeney  v.  Comu,  1  Dill.  73,  §§  5  a  -,  i2;  H  b  3i,  35. 
Sweet  r.  Chicago,  R.  I.  &  P.  R.  R.  Co.  11  Fed.  Rep.  355, 

^§  6  note  1;  10  O  23;  H  b  ^;  11  g  2,  12;  11  i  i:^;  17 

b26. 

Swope  V.  Leffingwell,  3  Morr.  Trans.  602,  §  18  a  i^. 

Talcott  V.  Pine  Grove,  1  Flippen,  120,  §  11 1  ^i 

Tanstall  v.  Madison,  30  La.  An.  471,  §  1  k  ic. 

Tapley  v.  Martin,  116  Mass.  275,  §  10  p  ". 

Tarver  v.  Ficklin,  60  Ga.  373,   §  10  o  i-^;  10  q  i^. 

Tavlor  v.  Cook,  2  McLean.  516,  §  1  j  ^i. 

Tavlor  v.  Rockefeller,  7  Cent.  L.  J.  349,  ^§  5  b  i;  6  a  5,  6; 

10  j  3;   10  U  J;   10  O  5,  22;    11  d  1;   11  g  W,  13;   11  h  3. 

Tavlor  v.  Shaw,  54  N.  Y.  75,  §§  7  b  »;  11  C  24,  2-5. 

Taylor  v.  Ypsilanti,  4  Morr.  Trans.  326,  §  111  ^s. 

Teal  V.  Walker,  10  Ch.  L.  X.  131,  §  1  j  «. 

Tesse  v.  Phelps,  1  :McA11.  17,  §  2  e  s. 

Temple  v.  Smith,  4  Fed.  Rep.  392,  §§  10  1  -i;  10  O  2s. 

Tennessee  v.  Davis,  100  U.  S.  257:  S.  C.  10  Cent.  L.  J.  251, 

i^^  1  f  1;  4  a  G;  10  f  2;  27  note;  27  c  ",  '-K 
TerrV  v.  Imperial  F.  Ins.  Co.  3  Dill.  408,  §§  4  d  ^'';  10  d  V; 

10  k  26;  24  a  ly. 
Texas  v.  Texas  &  Pac.  R.  R.  Co.  3  Woods,  308,  §§  17  b  •^; 

24  a  IS. 
Texas  v.  White,  7  Wall.  700,  §  1  j  9. 
Thatcher  v.  McWilliams,  47  Ga.  306;  §  17  f  i. 
Thaxter  v.  Hatch,  6  McLean,  68,  §  1  p  i^. 
Thaver  v.  Wales,  5  Fish.  Pat.  Cas.  448,  §§  2  a  S;  2  e  w. 
Third  Nat.  Bk.  v.  Harrison,  8  Fed.  Rep.  721,  §  1 1  5. 


TABLE   OF   CASES.  259 

Thomas  v.  State,  58  Ala.  365,  §  25  a  §. 

Thompson  v.  Kendricks,  5  Hayw.  115,  §§  12  a  3,  i,  5,  6;  17 

Thompson  v.  Eailroad  Cos.  6  Wall.  134,  §§  10  1  2;  11 1  5,  r. 

Tliomson  v.  Lee  Co.  3  Wall.  327,  §  1  p  32. 

Tibbatts  v.  Berrv,  10  Mou.  B.  473,  §§  5  b  6;  10  C  i". 

Tifft  V.  Iron  Clad  Manuf.  Co.  1(3  Blatchf.  48,  §  1  f  w. 

Tod  V.  Fairfield,  15  Ohio  St.  377,  §  4  a  1. 

Toland  v.  Sprague,  12  Peters,  300,  §§  1  q  2;  2  b  1,  2;  2  d  2,  8. 

Toruey  v.  Beardsley,  4  Wash.  C.  C.  242,  §  10  c  7. 

Torrey  v.  Grant  Loco.  Wks.  14  Blatchf.  269,  §§  11  c  ";  17 

d  5, 
Toucey  v.  Bowen,  1  Biss.  81,  §  11 1 0.    ' 
Towne  v.  Smith,  1  Wood.  &  M.  115,  §  1  p  is. 
Traders'  B'k  v.  Tallmadge,  9  Fed.  Rep.  363,  §§  11  d  ^;  11 

e20;  18  a '. 
Trafton  v.  Xougues,  4  Sawy.  178,  §§  10  a  4;  10  f  i",  lo,  20 ; 

lib  4;  17  a  11. 
Trust  Co.  V.  Maquillan,  3  Dill.  379,  §  1  k  4. 
Tuckerman  v.  Bigelow,  21  Law  Reporter,  208,  §  5  b  3. 
Tunstall  v.  Madison,  30  La.  An.  471,  §§  7  b  «,  I6;  H  b  5, 

4^;  lie  3,  13;    11  h",  «,  'J. 

Turner,  Ex  parte,  3  Wall.  Jr.  258,  §§  5  b  1,  ^;  6  C  8;  10  C 

';  10  o3'J;  14  di3. 
Turner  v.  Athans,  6  Neb.  54,  §  1  e  3. 
Turner  r.  Bank,  4  Dall.  8,  §§  1  a  ^  ^^  10^  li.  1  b  4;  1  n  M; 

lp40. 

Turner  v.  The  I.  B.  &  W.  R.  R.  Co.  8  Biss.  280,  §  11  g  20^  21. 
Turton  v.  Union  Pac.  R.  R.  Co.  3  Dill.  366,  §§  11  h  W;  24 

a 'J. 
Tyler  v.  Hagerty,  10  Ch.  L.  X.  100,  §  10  n  s. 
Union  Ins.  Co.  r.  U.  S.  6  Wall.  759,  §113. 
Union  Mut.  L.  Ins.  Co.  v.  University  of  Chicago,  6  Fed. 

Rep.  443,  §  1  r  9. 
Union  Nat.  Bank  c.  Chicago,  3  Ch.  L.  X.  369,  §§  1  k  i3;  l 

14,   6. 

U.  p.  R.  R.  Co.  V.  Macomb,  1  Fed.  Rep.  799,  §  10  f  ". 
Union  Sugar  Refi.  v.  Mathiesson,  2  Cliff.  304,  §  2  a  2,  6. 
U.  S.  V.  Alberty,  Hemp.  444,  §§  1  a  3,  S;  1  n  3. 

Arredondo,  6  Peters,  691,  §  1  a  1. 

Bailey,  9  Peters,  267,  §  22  a  1. 

Barker,  1  Paine,  156,  §114. 

Bevans,  3  AVheat.  336",  §  1  b  6. 

Bickford,  4  Blatchf.  337,  §  1 11  3. 

Block,  3  Biss.  208,  §  1  C  i". 

Bridgman,  8  Am.  Law  Rec.  541,  §  2  a  ". 

Briggs,  5  How.  208,  §  22  a  1. 

Britton,  2  Mason,  464,  §  1  n  3. 


u. 

,  s. 

V. 

u. 

s. 

V. 

u. 

s. 

V. 

u. 

s. 

V. 

u. 

,  s. 

V. 

u. 

s. 

V. 

u. 

s. 

V. 

u. 

s. 

V. 

u. 

s. 

V. 

260  TABLE  OF   CASES. 

U.  S.  V.  Campbell,  6  Hall  L.  J.  113,  ^  1  b  9. 

U.  S.  V.  Chicago,  7  How.  185,  §  23  a  -. 

U.  S.  V.  City  Bank,  19  How.  385.  §  23  a  n. 

U.  S.  V.  Coolidge.  1  Wheat.  415,  §  1  n  2. 

U.  S.  V.  Cornell,  2  Mason,  91,  §  1  n  4. 

U.  S.  V.  Daniel.  6  Wheat.  542,  §  22  a  3. 

U.  S.  V.  Dawson,  101  U.  S,  569,  §  20  b  2. 

V.  S.  V.  Drennon,  Hemp.  320,  §  1  a  §. 

TJ.  S.  V.  Emholt.  11  Fed.  Eep.  190,  note,  §  21  note. 

U.  S.  V.  French,  1  Gall.  1,  §  1  r  ^o. 

U.  S.  V.  Hall,  98  U.  S.  34.3,  §  1  n  2. 

U.  S.  V.  Hollidav,  3  Wall.  407,  §  1  n  i. 

TJ.  S.  r.  Howland,  4  Wheat.  108,  §  1  c  n.  12. 

U.  S.  V.  Hudson,  7  Cranch,  32.  §§  1  a  H;  1  n  2. 

U.  S.  V.  Jackalow,  1  Black,  484.  §  1  n  3. 

TJ.  S.  V.  Jackson,  3  Sawv.  62,  ^  1  e  s. 

U.  S.  V.  Lancaster,  5  Wheat.  4:34,  §§  1  n  i^  21  note. 

TJ.  S-  V.  Lathrop,  17  Johns.  4,  §  1  b  9. 

TJ.  S.  V.  Mann,  1  Gall.  3,  §  1  n  2. 

U.  S.  V.  McBralney,  3  Morr.  Trans.  706,  §  1  r  22, 

TJ.  S.  V.  McDowell,  4  Cranch,  316,  §  1  d  12, 

TJ.  S.  V.  McKee.  4  Dill.  1 ;  S.  C.  3  Cent.  L.  J.  292,  §  14  d  2,  n. 

TJ.  S.  V.  Isew  Bedford  Bridge,  1  Wood.  &  M.  401,  §§  1  b  2, 

3-  1  n  63  10, 
U.  S.'?;.  Ortega,  11  Wheat.  467,  §  1  m  2. 
TJ.  S.  V.  Ottmau,  1  Hughes,  313,  §  15  b  •*. 
U.  S.  i\  Peters,  5  Cranch,  115,  §  1  i  ». 
U.  S.  V.  Planters'  Bk.  9  Wheat.  410,  §  1  k  3. 
TJ.  S.  r.  Eathbone,  2  Paine,  578.  §  19  a  3. 
U.  S.  V.  Eavara,  2  Dall.  297,  §§  1  m  2;  1  n  8. 
U.  S.  V.  Eeese,  4  Sawy.  629,  §§^1  n  '^•;  21  note. 
TJ.  S.  V.  Eosenburgh,  7  Wall.  580,  §  22  a  2. 
TJ.  S.  V.  Eoss,  3  AVheat.  600,  §  22  a  1. 
U.  S.  V.  Smith,  1  Hughes,  347,  ^112. 
TJ.  S.  V.  Ta-wan-ga-ca,  Hemp.  304.  §  1  a  w. 
U.  S.  V.  Terrel,  Hemp.  411,  422.  §  1  a  3. 
U.  S.  V.  Tyler.  7  Cranch.  285,  §  22  a  \ 
U.  S.  V.  A'an  Fosseu,  1  Dill.  411,  §  1  r2o. 
TJ.  S.  V.  Wells,  11  Am.  L.  Eeg.  424.  ^  1  r  20. 
U.  S.  V.  Williams,  4  Cranch  C.  C.  392,  §  1  C  1. 
U.  S.  V.  Williamson,  7  Am.  L.  Eeg.  11,  §  1  b  13. 
U.  S.  V.  Wood,  2  Wheel.  C.  C.  325,  §  1  n  s. 
U.  S.  Savings  Inst.  v.  Brockschmidt.  72  111.  370,  §§  11  b  8, 

24;  lie  19;  11  h". 
UphoiTt'.  Chicago,  St.  L.  &  X.  O.  E.  Co.  5  Fed.  Eep.  545, 

§§  10  k  15.  23. 

Upton  V.  i^ew  Jersey  S.  E.  E.  Co.  25  X.  J.  Eq.  372,  §§  5  b 
18;  6  a  5,  Tj  6  c  2;  10  a  iC;  10  p  n. 


TABLE  OF  CASES.  261 

Urtetique  u.  D'Arcy,  9  Peters,  692,  §  17  b  6,  25. 
Van  Allen  u.  Atchison,  C.  &  P.  Pv.  Co.  3  Fed.  Rep.  545, 
§§  10  f^  ^0;  Hell;  17  d  1,4. 

Van  Antwerp  v.  Hulburd,  8  Blatchf.  282,  §§  1  j  3;  1 1  lO; 

2  6.0, 
Van  Bokkelin  v.  Cook,  5  Sawy.  587,  §  1  p  38,  4i. 
Van  Brunt  v.  Corbin,  14  Blatchf.  496,  §§  6  C  H;  10  C  C;  10 

O  13. 
Vandervoort  v.  Palmer,  4  Duer,  677,  §§  5  b  i^;  n  b  28  so 

31,  33;   11  j  2. 

Vanhorne  v.  Borrance,  2  Dall.  304,  §  1  e  2. 

Vannevar  v.  Bryant,  21  Wall.  41:   S.  G.  106  Mass.   180, 

§§  10  j   10;   10  n  23j   10  p   24j  ll  e  1;   11  f  4,  9,  U    21    22 

23,   24. 

Van  Zandt  v.  Maxwell,  2  Blatchf.  421,  §  27  b  *,  lo. 

Vape  V.  Mifflin,  4  Wash.  C.  C.  519,  §  10  p  is. 

Varner  v.  West,  1  Wood,  493,  §  1  p  i^. 

Vaughan  v.  Cent.  P.  E.  R.  Co.  14  Pacif.  L.  Rep.  274,  §  1  g 

17^  23    24. 

Venake  u. 'Richards,  1  Hughes,  326,  §§  27  note;  27  d  7. 
Victor  S.  M.  Co.  v.  Mingos,  25  Pitts.  L.  J.  125,  §  1  d  9. 
Victor  V.  Cisco,  5  Blatchf.  128,  §  27  d  9. 
Virginia,  Ex  parte,  100  U.  S.  339,  §§  25  a  6,  7;  25  b  3,  12. 
Virginia  v.  Rives,  100  U.  S.  313,  §§  25  a  1,  2,  3 j  25  b  12 ;  25 

c  12. 
Voorhees  v.  Frisbie,  8  Bank  Reg.  154,  §§  1  b  W;  1  f  1. 
Voor  V.  Fowler,  2  Bond,  294,  §§  1  qS;  2  a  s. 
Vose  V.  Reed,  1  Woods,  647,  §  1  k  «. 
Waggener  u.  Cheek,  2  Dill.  560,  §§  10  j  ',  lO;  11  f  is,  22^ 

24    25. 

Walker  v.  Flint,  7  Fed.  Rep.  435,  §  1  r  i3,  i5. 

Walker  v.  Powers,  3  Morr.  Tr.  260,  §  10  n  25. 

Walker  v.  United  States,  4  Wall.  163,  §  1  d  1. 

Walsh  V.  Memphis  C.  &  N.  W.  R.  R.  Co.  6  Fed.  Rep.  797, 

§§  10  O  6;  18  a  1. 

Ward  V.  Arredondo,  1  Paine,  410,  §§  5  a  2,  6^  24,  25^  27;  5  b 

1,  12,  16;  10  m  1;  11  a  10;  11  f  6;  17  c  '. 
Ward  V.  Chamberlain,  2  Black,  430,  §  23  a  19. 
Ward  V.  Todd,  2  Morr.  Trans.  1,  §§  1  r  H;  11  g  19. 
Warner  v.  Fowler,  4  Blatchf.  312,  §  27  b  1,  3,  t. 
Warner  v.  Pennsylvania  R.  R.  Co.  13  Blatchf.  231,  §  17 

a  13. 
Warner  v.  Sisson,  28  N.  J.  Eq.  117,  §  11  d  is. 
Warren  v.  Ives,  1  Flippen,  356,  §  18  b  n. 
Warren  v.  Pa.  R.  R.  Co.  13  Blatchf.  231,  §  11  d  22. 
Warren  v.  Wisconsin  V.  R.  R.  Co.  6  Biss.  425,  §  10  C  12. 
W^ashington  A.  &  G.  R.  Co.  v.  A.  &  W.  R.  Co.  19  Gratt. 

592, 1§  5  b  1;  6  f  H;  10  j  ',  i'>;  10  p  -,  ^^;  11  b  28. 


262  TABLE  OF   CASES. 

Washington  Imp,  Co.  v.  Kansas  Pac.  E..  Co.  5  DilL  489, 

§  10  a  11. 
Waterbury  v.  City  of  Laredo,  3  Woods,  371,  §  10  1  5. 
Watt  V.  White,  40  Tex.  338,  §§  11  d  8;  11  e  2^. 
Wayman  v.  Southard,  10  Wheat.  1,  §  23  a  2. 
Wear  v.  Maver,  6  Fed.  Eep.  660,  §  20  note. 
Webber  v.  Humphreys,  5  Dill.  223,  §§  10  a  '^3;  10  h  5. 
Webre  v.  Duroc,  15  La.  An.  65,  §  5  a  i;  11  b  ^s. 
Webster  r.  Cooper,  10  How.  54,  §  23  a  is. 
Weed  Sew.  Mach.  Co.  v.  Smith,  71  111.  204,  §§  11  b  s   24; 

lie  8,  10,  n  21;  11  h". 
Weed  Sew.  Mach.  Co.  r.  Wicks,  3  Dill.  261,  §  11 1  '. 
AVeeks  v.  Billings,  55  N.  H.  371,  §§  6  C  i3,  "  16;  10  b  i-; 

10  p  ^6. 

Wehl  1-.  Wald,  18  Blatchf.  163,  §  10  f  9. 

Welch  V.  Tennent,  4  Cal.  203,  §§  10  p  19;  10  q  2;  H  b 

18     21  _ 

Wells',  In  re,  3  Woods,  128;  S.  C.  17  Alb.  L.  J.  Ill,  §§  14 

d5;  25  a^  -^;  25  c  i'>;  26  a  i. 
Werthoiu  v.  Continental  E.  &  T.  Co.  12  Fed-  Eep.  690, 

§§111  1,  2;    18b  1. 

West  r.  Aurora,  6  Wall.  139,  §§  4  d  lO;  5  a  ^  10  b  i^;  11 

k6,  8. 

Westcott  V.  Fairlield,  Peters,  C  C.  45,  §§  1  j  9;  10  p  is. 
AV.  U.  Tel.  Co.  V.  Dickinson,  40  Ind.  444,  §§  1  k3,  i2;  10 

ki". 
West.  U.  Tel.  Co.  v.  Levi,  47  Ind.  552,  §§  1  d  i,  «;  4  b  i,  i9. 
AVheedon  v.  Camden  &  A.  E.  E.  Co.  4  Am.  Law  Eeg.  296, 

§lk3. 
A\"heedon  r.  Eailroad  Co.  1  Grant  Cas.  420,  §  10  k  i". 
AVheeling  v.  INIayor,  1  Hughes,  90,  §  1  k  9. 
AVheeling  Bridge  Cas.  13  How.  421,  §  1  c  i3. 
AVheeler  v.  Liverpool  L.  Ins.  Co.  i'6  The  Eeporter. - 418, 

§  11  d  19,  20. 

AVheeler  r.  McCormick,  8  Blatchf.  368,  §  36  a  3. 
AVhite  r.  The  Citv,  8  Phila.  241,  §  10  b  ^\ 
White  V.  Fenner,  1  Mason,  520,  ^  1  a  3. 
AVhite  V.  Leary,  3  Dill.  378,  §  1  p  -'». 
White  V.  Turk,  12  Peters,  238,  §  23  a  15. 
AVhite  V.  Vermont  &  M.  E.  E.  Co.  21  How.  575,  §  1  p  30. 
AVhitehouse  v.  Continental  Ins.  Co.  37  Leg.  Int.  225:  S.  C. 
2  Fed.  Eep.  498,  §§  5  note;  7  a  s-  11  d  3,  v-  H  e  13; 

11  f  8. 

Whiting  V.  AVellington,  10  Fed.  Eep.  810,  §  1  O  6. 
Whittier  r.  Hartford  F.  Ins.  Co.  55  X.  H.  kl.  §  11  f  32. 
AVickham  v.  AA'ickham,  27  N.  Y.  Supr.  239,  §  7  a  2. 
Wiggins  r.  Chicago  &  A.  E.  Co.  11  Fed.  Eep.  381,  §§  10:f 
":  10  k  19. 


TABLE   OF   CASES.  263 

Wilcox  V.  Follett,  10  Ch.  L.  N.  99,  §  17  c  -. 

Wilder  v.  Union  Xat.  Bk.  12  Ch.  L.  X.  75,  §§  10  a  2;  10  f  6. 

Wilkinson  v.  Wilkinson,  2  Curt.  582,  §  1  p  3,  S4. 

Willes  V.  Newberry,  4  McLean,  226,  §  1  p  -i. 

Williams  v.  Benedict,  8  How.  107,  §  1  c  i^. 

Williams  v.  Missouri,  K.  &  T.  R.  Co.  3  Dill.  267,  §  10  k  4 

Williams  v.  Town  of  Xottawa,  3  Morr.  Trans.  256,  §  1  O  4. 

Williams  v.  Price,  5  Munf.  507,  §  6  b  12. 

Williams  v.  Williams,  24  La.  An.  55,  §§  10  p  2S;  11  f  :3.5. 

Williams  Mow.  &  R.  Co.  v.  Eaynor,  7  Biss.  215,  §§  15  a  5. 

Wilson  V.  Barnum,  8  How.  258,  §  23  a  n. 

Wilson  V.  Blodgett,  4  McLean,  360,  §§  5  b  1,  3  6-  10  m  3; 

10  n  23. 
Wilson  V.  City  Bank,  5  Bank  Reg.  270,  §  1  m  *. 
Wilson  V.  Fisher,  Bald.  133,  §  1  p  24. 
Wilson  V.  Graham,  4  Wash.  C  C.  53,  §  2  d  2, 
Wilson,  County  of,  v.  Nat.  Bank,  103  U.  S.  770,  §  1 1 1. 
Wilson  V.  Sandford,  10  How.  99,  §  1  g  3. 
Wilson  V.  Wall,  6  Wall.  83,  §  1  b  9. 
Wilson  Pack  Co.  v.  Hunter,  11  Ch.  L.  N".  207,  §  2  c  8. 
Winans  v.  McKean  R.  &N.  Co.  6  Blatchf.  215,  §§  11  g4^  5. 
Wisconsin  ?j.  Duluth,  2  Dill.  406,  §§  1  a  3;  1  i  n-  1  k  is. 
Wolf  V.  Usher,  3  Peters,  269,  §  23  a  12,  n. 
Wood  V.  Davis,  18  How.  467,  §§  5  b  12 ;  10  m  i;  11 1  7. 
Wood  V.  Dummer,  3  Mason,  308,  §  1  p  ^'\ 
Wood  V.  Matthews,  2  Blatchf.  370,  §§  17  a  5-  27  a  6-  27 

bs,  9;  27  d  1,8. 
Wood  V.  Wagnan,  2  Cranch,  9,  §  11  b  S;  17  b  is. 
Wood  Paper  Co.  v.  Glen's  Falls  Co.  8  Blatchf.  513,  §  1  g23. 
Woodman  v.  Latimer,  2  Fed.  Rep.  842,  §  1  d  14. 
Woodson  V.  Fleck,  Chase,  305,  §  25  b  s. 
Woolridger.  McKenna,  8  Fed.  Rep.  650,  §§  2  a  H;  10  f  1, 

2,9;  11110;   14  b  3. 

Worcester  v.  Georgia,  6  Peters.  515,  §  1  m  n. 
Wormley  v.  Wormley,  8  Wheat.  421,  §  5  b  12. 
Wormser  v.  Dahlman,  16  Blatchf.  319;  S.  C.  57  How.  Pr. 

286,  §§6  note  1;  6biO;  6cC;  7  a  2;  10  o  5;  lOqis. 
Wormser  v.  Kline,  57  How.  Pr.  280,  §  6  note  i;  11  b  3i  33. 
Wright  V.  Wells,  Peters  C.  C.  220,  §§  4  b  is,  20;  4  ©  5. 
Young  V.  Andes  Ins.  Co.  3  Cent.  L.  J.  719,  §§  10  g  2;  11  d 

23;  17  a  6;  17  e  2,  4. 
Young  V.  Bryan,  6  Wheat.  146,  §  1  p  23. 
Yulee  V.  Vose,  99  U.  S.  539;  S.  C.  64  N.  Y.  449,  §§  5  a  i;  6 

c4;  10n34;  I0qi3;  11  c 25,  26;  He 4;  H  f  10 ;  18 a ^1. 
Ziuckersen  v.  Hufschmidt,  1  Cent.  L.  J.  144,  §  4  b  15. 


INDEX 


Destt  removal.— S3. 


INDEX. 


Act— see  Eemoval  Acts. 

Actions— against  civil  officers  by  aliens,  p.  33. 

action  may  be  removed,  pp.  33,  108,  §  10  c. 

to  what  district  removable,  p.  34. 

See  Rev.  Stats.  §  644,  and  sec.  28  of  this  book. 
Alien — jurisdiction  over,  p.  68,  §  1  m. 

suit  against,  p.  91,  §  5;  p.  109,  §  10  d. 

against  citizen  and,  p.  95,  §  6. 

removal  of  suits  in  a  particular  case,  p.  203,  §  28, 
Amount— in  controversy,  p.  56,  §  1  d. 
Amount— in  dispute,  p.  84,  §  4;  p.  86,  §  4  a. 

in  controversy  to  authorize  removal,  jp.  86,  §  4  o;  p. 
110,  §  10  e. 
Ancillary  proceedings— jurisdiction  over,  p.  114,  §  IDA. 
Appeal— on  remand  or  refusal  to  remand,  p.  177,  §  17  g. 
Appearance— p.  77,  §  2;  p.  91,  §  5  a. 

service  by  publication  on  failure  to  appear,  p.  78,  §  2. 
Assignee— of  chose  in  action,  jurisdiction  over,  p.  V 

§lp. 
Assignees— removal  of  suits  by,  p.  121,  §  10  I. 
Assignment— to  confer  jurisdiction,  p.  70,  §  1  o. 
Attachment— process  by,  p.  80,  §  2  6. 

on  removal  remain  in  force,  p.  168,  §  15. 

in  general,  p.  169,  §  15  a. 

attachments,  power  of  circuit  courts,  p.  169,  §  15  h. 
Bail— for  appearance,  p.  104,  §  8  «. 
Banks— see  National. 

Bond  and  Security— for  removal,  p.  142,  §  11  c. 
Cases — arising  under  Constitution  and  laws  of  United 

States,  p.  Ill,  §  10/. 
Certiorari — in  prosecutions  against  United  States  civil 

officers,  p.  202,  §  27  e. 
Citizen — action  against  alien  and,  p.  95,  §  6. 
Citizenship— to  authorize  removal,  p.  117,  §  10 j. 

of  corporation,  p.  118,  §  10  k. 

right  of  removal  dependant  on,  p.  89,  §  4  cZ. 

qualification  as  to,  p.  93,  §  5  6. 

jurisdiction  because  of,  p.  63,  §  1 J 


268  CIVIL  ACTIONS— CONCURRENT  JURISDICTION. 

Civil  actions— removal  of,  p.  104,  §  10. 

suits  removable,  p.  105,  §  10  a. 

suits  not  removable,  p.  107,  §  10  b. 

actions  removable,  p.  108,  §  10  c. 

suits  against  aliens,  p.  109,  §  10  d. 

amount  in  controversy,  p.  110,  §  10  e. 

cases  arising  under  Constitution,  laws,  and  treaties, 
p.  Ill,  §  10/. 

suits  pending,  p.  113,  §  10  .gr, 

ancillary  proceedings,  p.  114,  §  10  h. 

controversy  between  parties,  p.  115,  §  10  i. 

citizenship,  p.  117,  §  10^'. 

citizenship  of  corporation,  p.  118,  §  10  k. 

assignees,  p.  121,  §  10  I. 

nominal  parties,  p.  123,  §  10  m. 

inseparable  controversy,  p.  125,  §  10  n. 

the  whole  controversy  removed,  p.  128,  §  10  o. 

decisions  under  Acts  of  18GG,  18(j7,  p.  131,  §  10  p. 

right  to  remove,  p.  133,  §  10  q. 
Civil  cases— in  law  and  equity,  p.  54,  §  1  c. 
Civil  causes— certificate  of  division  of  opinion,  p.  187, 

§  23. 
Civil  rights  act— concurrent  jurisdiction,  p.  5. 

with  district  court,  p.  29. 

civil  and  criminal  causes,  p.  29. 

denial    of   civil  rights  in  State  courts,  pp.  29,  193, 
§  25  a. 

right  of  removal  from  State  court,  p.  30. 

jurisdiction,  how  enforced,  p.  30. 

common  law  when  extended,  ]i.  30. 

jurisdictions  extended  to  circuit  courts,  p.  30. 

suits  for  damages  for  injuries,  p.  30. 

verified  petition  of  defendant,  p.  31. 

certificate  of  counsel,  p.  31. 

entry  on  docket  of  circuit  court,  p.  31. 

certiorari  to  issue  to  State  court,  p.  31. 

habeas  corjius  when  to  issue,  p.  31. 

duty  of  State  court,  p.  32. 

proceedings  in  circuit  court,  p.  32. 

misdemeanor  to  proceed  in  State  court,  p.  32. 

proceedings  when  a  contempt,  p.  32. 

duty  of  marshal,  p.  32. 

attachments  and  bail  to  continue  in  force,  p.  32. 

default  of  record,  proceedings  de  novo,  p.  32. 

copies  refused,  how  supplied,  p.  33. 
See  Rev.  Stats.  §§  G41,  042,  646,  643,  645,  and  sees. 
25,  26,  15,  27,  13,  of  this  book. 
Concurrent  jurisdiction— p.  74,  §  1  r. 


CONSTITUTIONAIi  PROVISIONS— HABEAS  CORPUS  ACT.      269 

Constitutional  provisions— removal  of  cause,  p.  52, 
§  1  a;  p.  85,  §  4  a. 

suits  arising  under,  p.  57,  §  le;  p.  Ill,  §  10/. 
Controversies— between  citizens  of  different  States,  p. 
63,  §  1  j. 

final  determination  of,  p.  97,  §  6  &. 

inseparable,  p.  125,  §  10  7i. 

the  whole  must  be  removed,  p.  128,  §  10  o. 
Controversy— between  parties,  p.  115,  §  10  i. 
Copyright  la-ws— suits  under,  p.  62,  §  1  A. 
Corporations— jurisdiction  over,  p.  do,  ^  Ik. 

service  of  process  on,  i?.  81,  §  2  c. 

citizenship  of,  p.  118,  §  10  k. 

under  United  States  laws,  removal  of  cause  by,  p. 
189,  §  24. 

created  by  acts  of  Congress,  p.  189,  §  24  a. 
Criminal    cases— jurisdiction  over,  p.  70,  §  In;  p.  194, 
§  25  6. 

against  United  States  civil  officers,  p.  200,  §  27  c. 
Criminal  cause — certificate  of  division  of  opinion,  p. 

186,  §  22  a. 
Death  of  party— revival  on,  p.  84,  §  3. 
Dismissal— see  Eemand. 

Division  of  opinion— decision  of  presiding  judge,  p. 
185,  §  21. 

in  criminal  causes,  p.  186,  §  22. 

certificate,  p.  186,  §  22  a. 

in  civil  causes,  certificate,  p.  187,  §  23. 

civil  suits,  p.  187,  §  23  a. 
Error  and  appeal— from  order  remanding  cause,  p.  178, 

Fact — issues  of,  tried  by  jury,  p.  184,  §  19  a. 

issues  of,  tried  by  court,  p.  184,  §  20  a. 
Final  determination— of  controversy,  p.  97,  §  6  6. 
Forms— see  Precedents. 
Georgia— removal  of  suits  in,  p.  203,  §  29. 
Government— a  party,  p.  62,  §  1  i. 

Habeas  Corpus— in  action  against  officers,  p.  202,  §  27  c. 
Habeas  Corpus  Act— suits  against  officers,  p.  21. 

acts  during  rebellion,  p.  21. 

security  for  appearance,  p.  21. 

duty  of  State  court  to  accept  security,  p.  21. 

bails  discharged,  p.  21. 

copies  to  be  filed  iu  United  States  court,  p.  21. 

attachments  to  remain  in  force,  p.  22. 

removal  of  cause  to  circuit  court,  i».  22. 

copies  of  proceedings  to  be  filed,  p.  22. 

bail  and  attachment  to  continue  in  force,  p.  22. 


270  HABEAS   CORPUS  ACT— JURISDICTION. 

Habeas  Corpus  Act— Continued. 

duty  of  State  court,  p.  23. 

appeal  or  error,  when  not  allowed,  p.  23. 

defendant  when  to  recover  double  costs,  p.  23, 

right  of  removal,  when  may  be  exercised,  p.  23. 

removal  after  final  judgment,  p.  23. 

further  iDroceedings  in  State  court  void,  p.  24. 

duty  of  clerk  of  State  court,  p.  24. 

jurisdiction  on  refusal  of  clerk,  p.  24. 

to  enforce  removal  of  cause,  p.  196,  §  26. 

when  petitioner  in  actual  custody,  p.  196,  §  26  a. 
See  Eev,  Stats.  641,  642,  646,  and  sees.  25,  26,  15,  of 
this  book. 
Injunction — right  of  removal,  p.  96,  §  6  a. 

on  removal,  remain  in  force,  p.  168,  §  15. 

continuance  in  force,  p.  170,  §  15  c. 
Inseparable  controversy— essential  to  right  to  remove, 
p.  125,  §  10  n. 

wliole  controversy  to  be  removed,  p.  128,  §  10  o. 
Issues— trial  by  jury,  p.  183,  §  19. 

trial  by  the  court,  p.  184,  §  20. 
Judicial  po"wer — constitutional  provisions,  p.  52,  §  1  a. 

power  of  Congress,  iJ.  53,  §  1  6. 
Judiciary  Act— removal  of  cause  under,  p.  13. 

suits  against  an  alien,  p.  13. 

suits  between  citizens  of  different  States,  p.  13. 

provisions  as  to  Maine  and  Kentucky,  p.  13. 

attachments  to  remain  in  force,  p.  13. 

actions  concerning  title  to  lands,  p.  14. 

amount  in  dispute,  p.  14. 

trial  of  issues  of  fact,  p.  14. 

trials  in  equity  and  admiraltv,  j).  14. 
See  Eev.  Stats.  §§  639,  646,  647,  648,  and  sees.  4,  12, 
15,  19,  of  this  book. 
Jurisdiction — original,  concurrent,  appellate,  pp.  43,  51. 

judicial  power,  constitutional  provisions,  j).  52,  §  1  a. 

on  what  authority  depends,  p.  52,  §  1  a. 

how  limited,  p.  52,  §  1  a. 

when  will  be  declined,  p.  52,  §  1  a. 

power  of  Congress  to  confer,  ]).  53,  §  1  6. 

when  exclusive,  j:).  53,  §  1  6. 

when  may  be  qualified,  p.  54,  §  1  6. 

power  to  issue  writs,  p.  54,  §  1  6. 

civil  cases  in  law  and  equity,  pp.  43,  54,  §  1  c 

amount  in  controversy,  pp.  43,  56,  §  1  cZ. 

suits  arising  under  the  Constitution,  pp.  43,  57,  §  1  e. 

suits  under  United  States  statutes  or  treaties,  pp. 
43,  58,  §  1/. 


JURISDICTION" — NEW  YORK.  271 

Jurisdiction— ron«m?/ec7. 

suits  arising  out  of  patent  laws,  p.  59,  1  g. 

suits  under  copyright  and  trade-mark,  p.  62,  §  1  ^. 

■where  governinent  is  party,  pp.  43,  62,  §  1  i. 

controTersies  between  citizens  of  different  States, 
pp.  43,  63,  §  1  j. 

over  corporations,  p.  65,  §  1  k. 

over  national  banks,  p.  67,  §  1  L 

when  alien  is  party,  pp.  43,  68,  §  1  m. 

in  criminal  cases,  pp.  43,  70,  §  1  o. 

concurrent  with  district  court,  pp.  4.3,  70,  §  1  o. 

assignment  to  confer,  pp.  43,  70,  §  1  o. 

restriction  as  to  suits  by  assignee,  pp,  44,  70,  §  1  o. 

over  assignee  of  chose  in  action,  p.  71,  ^Ip. 

territorial  limit  of,  pp.  43,  74,  §  1  g. 

concurrent,  pp.  43,  74,  §  1  r. 

liens,  absent  defendants,  p.  77,  §  2. 

bow  acquired,  p.  79,  §  2  a. 

attachment  against  non-resident,  p.  80,  §  2  6. 

process  on  corporations,  p.  81,  §  2  c. 

waiver  of  irregularities,  p.  82,  §  2  d. 

a  personal  privilege,  and  may  be  waived,  p.  83,  §  2e. 

revival  of  suit  on  death  of  party,  p.  84,  §  3. 

appellate  from  district  court,  pp.  44,  52,  76,  §  1  r. 

of  circuit  court,  p.  153,  §  11  g. 

of  case  removed,  p.  180,  §  18  a. 
Jnrisdiction— circuit  court  of  southern  district  of  New 

York,  p.  20(3,  §  36  a. 
Jury — issues  of  fact,  tried  by,  p.  184,  §  19  a. 

waiver  of,  p.  184,  §  20  a. 
Kentucky— removal  of  cause.  Judiciary  Act,  p.  13. 

causes  involving  land  titles,  p.  14. 
Laws— cases  arising,^!!.  S.  laws,  p.  Ill,  §  10  /;  p.  58,  §  If. 

coriDorations  under  U.  S.  laws,  p.  189,  §  24. 
Liens— appearance  of  parties,  p.  77,  §  2. 

jurisdiction,  how  acquired,  p.  79,  §  2  a. 

process  by  attachment,  p.  80,  §  2  6. 
Maine — removal  of  causes.  Judiciary  Act,  p.  13. 

causes  involving  land  titles,  p.  14. 
Missouri— transfer  of  business  in  courts  of,  p.  204,  §  32. 

former  issuance  of  process,  p.  204,  §  33. 

transfer  between  eastern  and  western  districts,  p. 
205,  §  34. 

custody  of  books,  papers,  etc.,  p.  205,  §  35. 
National  banks— jurisdiction  over,  p.  67,  §  1 Z;  p.  189,  §  24. 
Necessary  parties— p.  98,  ^Qc. 
New  York— circuit  court  for  southern  district,  p.  206,  §  36. 

jurisdiction,  p.  206.  §  36  a. 


272  NOMINAL   PARTIES — PROCEEDINGS. 

Nominal  parties— not  to  defeat  right  to  remove,  p.  123, 

§  10  n. 
Officers — acting    under  registration    laws,   removal    of 

suits  against,  pp.  17,  38,  196,  §27. 
Ohio — removal  of  suits  in.  p.  203,  §  30. 
Opinion— division  of,  pp.  185,  187,  §§  21-23. 
Parties— necessary,  p.  98,  §  6  c. 

controversies  "between,  p.  115,  §  10  j. 

nominal,  not  to  effect,  p.  123,  §  10  m. 
Patent  laws — removal  of  suits  under,  p.  59,  §  1  ^r. 
Persons— denied  civil  rights,  removal  of  cause  against, 
p.  191,  §  25. 

denial  of  civil  rights,  p.  193,  §  25  a. 

in  criminal  cases,  p.  191,  §  25  b. 

when  petitioner  in  actual  custody,  p.  196,  §  26. 

habeas  corpus,  p.  196,  §  26  a. 
Petition— for  removal,  p.  137,  §  11  b. 

by  corporation,  p.  190,  §  27  fZ. 

in  action  against  officers,  p.  201,  §  27  d. 
See  Precedents. 
Practice  and   procedure— p.  160,  §  11 1. 

suits  against  revenue  officials,  p.  201,  §  27  a. 
Precedents— from  liemoval  Cases,  100  U.  S.  483,  p.  207. 

Burke  {resident)  v.  Flood  et  al.  {residents  and  non- 
residents), p.  209. 

Cummiugs  {resident)  v.  Anderson  {non-resident), 
p.  215. 

Ealston  {resident)  v.  Sharon  et  al.  {non-resident 
and  resident  who  has  disclaimed  all  interest  in  the 
action),  p.  220. 

Moore  (citizen)  v.  Menzies  et  al.  {aliens),  p.  224. 
Prejudice— and  local  influence  as  ground  for  removal, 
p.  100,  §7. 

statute  construed,  p.  101,  §7  a. 

affidavit,  requisites  of,  p.  101,  §7  6. 

bail  for  appearance,  p.  104,  §  8  a. 
Proceedings— ^0  effect  removed,  p.  103,  §  8. 

for  removal  of  cause,  Act  of  1875,  p.  135,  §  11. 

on  entrv  of  copv  of  record,  p.  104,  §  9. 

effect  of,  p.  157,"'§  11  j. 

application,  p.  136,  §  11  a. 

petition,  what  to  contain,  p.  137,  §  11  6. 

bond  and  security,  p.  142,  §  11  c. 

at  or  before  the  first  term,  ji.  144,  §  11  d. 

when  cause  could  be  first  tried,  p.  147,  §  11  e. 

time  under  prior  statutes,  p.  150,  §  11/. 

jurisdiction  of  circuit  court,  when  attaches,  p.  153, 
§  11  a. 


PROCEEDINGS— REM.AXD  AND  DIS3IISSAL.  273 

Proceedings— Continued. 

proceedings  in  State  courts,  i).  155,  §  11  h. 

effect  of  proceedings  for  removal,  p.  157,  §  11  i. 

order  of  removal,  p.  158,  §  11^'. 

effect  of  removal,  p.  159,  §  11  k. 

practice  and    procedure  in  circuit    court,   p.   160, 
§11Z. 

on  conflicting  land  titles,  p.  162,  §  12  a. 
Proceedings — on  cause  removed  p.  179,  §  18. 

jurisdiction,  when  entertained,  p.  179,  §  18  a. 

procedure,  of  original  cognizance,  p.  181,  §  18  b. 

authority  of  circuit  court,  p.  182,  §  18  c. 

issues  of  fact,  when  tried  by  jury,  p.  183,  §  19. 

exceptions  to  trial  by  jury,  p.  184,  §  19  a. 

issues  of  fact  when  tried  by  court,  p.  184,  §20. 

waiver  of  jury  trial,  p.  184,  §  20  a. 

findings  by  the  court,  p.  185,  §  20  b. 

division  of  opinion;  decision  by  presiding  judge,  p. 
185,  §21. 

division  of  opinion  in  criminal  causes,  p.  186,  §  22. 

criminal  cases  certified,  p.  186,  §  22  a. 

division  of  opinion  in  civil  causes,  j).  187,  §  23. 

civil  suits  certified,  p.  187,  §  23  a. 
Proceedings— in  suits  on  denial  of  civil  rights,  p.  195, 

§25c. 
Process— issuance  of,  p.  82,  §  2  cZ. 

waiver  of  irregularities,  p.  82,  §  2  cZ. 

a  personal  privilege,  and  may  be  waived,  p.  83, 
§2  e. 

not  affected  by  removal,  p.  171,  §  16. 

original  process,  p.  171,  §  16  a. 
Records — procedure  on  entry  of  copies  of,  p.  104,  §  9 

refusal  of  clerk  to  furnish,  p.  liJ3,  §  13. 

time  to  file — misfeasance  of  clerk,  p.  1(>4,  §  14. 

certiorari  to  bring  up  record,  p.  164,  §  14. 

copy  of  record,  p.  165,  §  14  a. 

time  to  file  record,  p.  166,  §  14  b. 

duty  of  clerk,  p.  166,  §  14  c. 

certiorari  to  issue,  p.  167,  §  14  d. 
Registration— action  against  ofiicers  of,  p.  196,  §  27. 
Remand  and  dismissal  — of  cause  removed,  p.  172, 
§17. 

remanding  for  want  of  jurisdiction,  p.  172,  §  17  a. 

motion  to  remand,  p.  174,  §  17  b. 

for  failure  to  file  record,  p.  176,  §  17  c. 

sufficiency  of  bond,  p.  177,  §  17  d. 

application  too  late,  p.  177,  §  17  e. 

effect  of  remand,  p.  178,  §  17/. 

order  reviewable,  p.  178,  §  17  [/. 


274         REMOVAL  ACT  OF  1866— REMOVAL  ACT  OF  1875. 

Removal  Act  of  1866— suits  against  aliens,  p.  25. 
suits  between  citizens  of  different  States,  p.  25. 
matter  in  dispute,  p.  25. 
suit  for  restraining  or  enjoining,  p.  25. 
suits  capable  of  final  determination,  p.  25, 
defendant  may  remove,  p.  25. 
petition  to  be  filed,  p.  25. 

at  any  time  before  trial  or  final  bearing,  p.  25. 
surety  for  entering  copies  of  process,  etc.,  p.  25. 
surety  for  appearance  and  special  bail,  p.  25. 
duty  of  State  court  to  accept  security,  p.  25 
stay  of  proceedings  in  State  court,  p.  25. 
cause  to  proceed  in  circuit  court,  p.  25. 
attachments  to  remain  in  force,  p.  26. 
injunctions  to  remain  in  force,  p.  26. 
bonds  and  obligations  to  remain  in  force,  p.  26. 
enforcement  of  obligations  in  circuit  court,  p.  26. 
removal  not  to  prejudice  rights  of  plaintiff,  p.  26. 
copies  of  proceedings,  etc.,  force  and  effect  of,  p.  26. 
See  Rev.  Stats.  639,  640,  636,  and  sees.  4-9  of  this 
book. 
Removal  Act  of  1867 — removal  for  prejudice  or  local 
influence,  p.  17. 
at  any  time  before  final  hearing  or  trial,  p.  27. 
petition  for  removal,  p.  27. 
security  to  be  offered,  p.  27. 
duty  of  State  court  to  accept  surety,  p.  27. 
proceedings  in  circuit  court,  p.  28. 
attachments  and  other  process  to  remain  in  force, 
p.  28. 

See  Rev.  Stats.  §§  639,  646,  and  sees.  4,  5,  6,  7,  8,  9, 
15,  of  this  book. 
Removal  Act  of  1868— corporations. 

by  corporations,  or  members  thereof,  p.  28. 
United  States  banking  corporations  excepted,  p.  28. 
verified  petition  for  removal,  p.  28. 
defense  arising  under  Constitution,  p.  28. 
surety  to  be  offered,  p.  28. 
duty  of  State  court  to  accept  security,  p.  29. 
proceedings  in  circuit  court,  p.  29. 
obligations  to  remain  in  force,  p.  29. 
See  Rev.  Stats.  §§  640,  646,  and  sees.  24,  15,  of  this 
book. 
Removal  Act  of  1875— any  civil  suit,  pp.  44,  104,  §  10. 
suits  pending  or  hereafter  brought,  pp.  44,  104,  §  10. 
matter  in  dispute,  pp.  44,  104,  §  10. 
suits  arising  under  Constitution,  laws,  and  treaties, 
pp.  44,  104,  §  10. 


REMOVAL  ACT  OF   1875.  275 

Removal  Act  of  1875— Continued. 

suits  -where  United  States  is  plaintiff  or  petitioner, 

pp.  44,  104,  §  10. 
controversies  between  citizens  of  different  States, 

pp.  44,  104,  §  10. 
claims  under  grants  of  different  States,  pp.  44,  104, 

§10. 
controversies  between  citizens  and  foreign  States  or 

aliens,  pp.  44, 104,  §  10. 
either  party  may  remove,  pp.  44,  135,  §  11. 
when  one  or  more  of  either  party  may  remove,  pp. 

44,  135,  §  11. 
proceedings,  petition  to  be  filed,  pp.  45,  135,  §  11. 
before  or  at  term  cause  could  be  first  tried,  pp.  45,, 

135,  §  11. 
and  before  trial  thereof,  pp.  45, 135,  §  11. 
to  circuit  court  in  district  where  pending,  pp.  45,  135, 

§11. 
bond  and  suificient  surety,  pp.  45,  135,  §  11. 
for  entry  of  suit  on  first  day  of  next  session,  pp.  45, 

135,  §  11. 

for  payment  of  costs,  pp.  45,  135,  §  11. 

and  for  appearance  and  special  bail,  pp.  45, 135,  §  11. 

duty  of  State  court  to  accept  petition  and  bond,  pp. 

45, 135,  §  11. 
State  court  to  proceed  no  farther,  pp.  45,  135,  §  11. 
bail  in  State  court  discharged,  pp.  45,  133,  §  11. 
cause  to  proceed  in  circuit  court,  pp.  45, 135,  §  11. 
proceedings  in  controversies  respecting  lands,  pp.  45, 

136,  §  11. 

production  of  evidence,  pp.  45,  136,  §  11. 

when  precluded  from  pleading  grant,  pp.  45, 136,  §  11. 

removal  of  cause  concerning  land  titles,  pp.  46,  136, 

§11- 
restriction  as  to  proving  title,  pp.  46,  136,  §  11. 
trial  of  issues  to  be  by  jury,  pp.  46,  136,  §  11. 
exception  as  to  equity  and  admiralty,  pp.  46, 136,  §  11. 
process  not  affected  by,  pp.  46,  171,  §  16. 
attachment  or  sequestration  of  goods,  pp.  46, 171,  §  16. 
bonds,  undertakings,  or  security,  pp.  46,  171,  §  16. 
injunction,  orders,  and  proceedings,  pp.  46,  171,  §  16. 
dismissal  for  want  of  jurisdiction,  pp.  47, 172,  §  17. 
parties  collusively  made  or  joined,  pp.  47,  172,  §  17. 
order  as  to  costs  on  dismissal,  pp.  47,  172,  §  17. 
order  of  dismissal  reviewable  on  appeal,  pp.  47, 172, 

§17. 
proceedings  in  circuit  court,  pp.  47, 179,  §  18. 
time  to  file  copy  of  record,  pp.  47,  164,  §  14. 


276       REMOVAL  ACT  OF  1875. — REMOVAL  PROCEEDINGS. 

Removal  Act  of  1875— Continued. 

twenty  days,  when  allowed,  pp.  47,  464,  §  14. 

filing  an  appearance,  satisfaction  of  bond,  pp.  47, 164, 

§14. 
misfeasance  of  clerk,  pp.  48,  164,  §  14, 
misdemeanor  of  clerk,  pp.  48,  164,  §  14. 
certiorari  to  bring  up  record,  pp.  48,  164,  §  14. 
when  court  may  dismiss  suit,  pp.  48,  165,  §  14. 
when  court  may  require  pleading de  7iovo,  pp.48, 165, 

§14. 
"bond  as  to  furnishing  copies  when  discharged,  pp.  48, 

165,  §  14. 
liens,  defendants  absent  from  district,  pp.  49,  78,  §  2. 
order  directing  appearance,  pp.  49,  78,  §  2. 
service  on  absent  defendants,  pp.  49,  78,  §  2. 
service  by  publication,  pp.  49,  78,  §  2. 
period  of  publication,  pp.  49,  78,  §  2. 
default  in  appearance,  pp.  49,  78,  §  2. 
hearing,  and  adjudication  in  absence  of  party,  pp.  49, 

78,  §  2. 
what  property  affected  by  adjudication,  pp.  49, 78,  §  2. 
time  for  appearance  of  absentee,  pp.  50,  78,  §  2. 
revival  on  death  of  party,  pp.  50,  84,  §  3. 
representative  to  file  copy  of  appointment,  pp.  50,  84, 

§o. 
error  or  appeal  by  representative,  pp.  50,  84,  §  3. 
death  before  error  or  appeal,  pp.  50,  84,  §  3. 
repealing  clause,  p.  50. 
Removal— of  suits  under  revised  statutes,  p.  36. 
constitutional  provisions,  p.  85,  §  4  a. 
right  of  removal,  p.  88,  §  4  c. 
right  dependent  on  citizenship,  p.  89,  §  4  a 
from  any  State  court,  p.  90,  §  4  e. 
when  suit  against  alien,  p.  91,  §  5. 
appearance,  p.  91,  §  5  a. 
qualifications  as  to  citizenship,  p.  93,  §  5  &. 
against  alien  and  citizen,  p.  95,  §  6. 
injunction,  p.  96,  §  (ia. 

final  determination  of  controversy,  p.  97,  §  6  &. 
necessary  parties,  p.  98,  §  6  c, 
prejudice  and  local  influence,  p.  100,  §  7. 
affidavit  of  prejudice,  etc.,  p.  101,  §  7  a. 
surety  for  entering  copies  of  papers,  p.  103,  §  8. 
bail — special  bail,  p.  104,  §  8  a. 
proceedings  on  entry  of  copies,  p.  104,  §  9. 
Removal  proceedings— p.  135,  §  11. 
application,  p.  136,  §  11  a. 
petition  for,  p.  137,  §  11  b. 


REMOVAL  PROCEEDINGS.  277 

Removal  Proceedings— Continued. 
■bond  and  security,  p.  142,  §  11  c. 
at  or  before  the  first  term,  p.  144,  §  11  d. 
when  cause  could  be  first  tried,  p.  147,  §  11  e. 
time  under  prior  statutes,  p.  150,  §  11  /. 
jurisdiction  of  circuit  court,  p.  153,  §  11  g. 
proceedings  in  State  court,  p.  155,  §  11  h. 
effect  of  proceedings  for  removal,  p.  157,  §  11  i. 
order  of  removal,  p.  158,  §  11  J. 
effect  of  removal,  p.  159,  §  11  k. 
practice  and  procedure,  p.  160,  §  11 1. 
land  titles  from  different  States,  p.  162,  §  12. 
conflicting  land  grants,  p.  162,  §  12  a. 
records  refused  by  clerk  of  State  court,  p.  163,  §  13. 
time  to  file  record — misfeasance  of  clerk,  p.  164,  §  14. 
the  record,  p.  165,  §  14  a. 
time  to  file  record,  p.  166,  §  14  b. 
duty  of  clerk,  p.  160,  §  14  c. 
certiorari,  p.  167,  §  14  cZ. 
attachments,  injunctions,  and  bonds  remain  in  force, 

p.  168,  §  15. 
■writs  in  general,  p.  169,  §  15  a. 
attachments,  p.  169,  §  15  b. 
injunctions,  p.  170,  §  15  c. 
process  not  affected  by  removal,  p.  171,  §  16. 
original  process,  p.  171,  §  16  a. 
dismissal  of  cause,  when,  p.  172,  §  17. 
remanding  cause,  p.  172,  §  17  a. 
motion  to  remand,  p.  174,  §  17  b. 
failure  to  file  record,  p.  176,  §  17  c 
sufficiency  of  bond,  p.  177,  §  17  d. 
application  too  late,  p.  177,  §  17  e. 
effect  a{  remand,  p.  178,  §  17/. 
error  and  appeal,  p.  178,  §  17  g. 
proceedings  in  circuit  court,  p.  179,  §  18. 
jurisdiction,  p.  179,  §  18  a. 
procedure,  p.  181,  §  18  6. 
authority  of  court,  p.  182,  §  18  c. 
issues  of  fact  when  tried  by  jury,  p.  183,  §  19. 
trial  of  issues  of  fact,  p.  184,  §  19  a. 
issues  of  fact  tried  by  court,  p.  184,  §  20. 
waiver  of  jury  trial,  p.  184,  §  20  a. 
findings  by  the  court,  p.  185,  §  20  &. 
division  of  opinion  in  civil  causes,  p.  185,  §  21. 
division  of  opinion  in  criminal  causes,  p.  186,  §  22* 
criminal  causes,  p.  186,  §  22  a. 
division  of  opinion  in  civil  causes,  p.  187,  §  23. 
civil  suits,  p.  187,  §  23  a. 
X)ESTY  Removal.— 84. 


278       REMOVAL  PROCEEDINGS— KEVENUE  ACT. 

Removal  PioceedinQS— Continued. 

removal  of  suits   against   corporations   organized 

under  United  States  laws,  p.  189,  §  2i. 
corporations  created  by  congressional  acts,  p.  189, 

§  24  a. 
removal  of  causes  against  persons  denied  civil  rights, 

p.  191,  §  25, 
denial  of  civil  rights,  p.  193,  §  25  a. 
in  criminal  cases,  p.  19i,  §  25  6. 
in  general  proceedings,  p.  195,  §  25  c. 
when  petitioner  in  actual  custody,  p.  196,  §  26. 
habeas  corpus,  p.  196,  §  26  a. 
suits  against  revenue  officers,  p.  196,  §  27. 
in  general,  p.  196,  §  27  a. 
suits  removable,  p.  199,  §  27  &. 
criminal  cases,  p.  200,  §  27  c. 
practice  and  procedure,  p.  201,  §  27  d. 
enforcing  removal,  p.  202,  §  27  e. 
suits  by  aliens  in  a  particular  case,  p.  203,  §  28. 
removal  of  suits  in  Georgia,  p.  203,  §  29. 
removal  of  suits  in  Ohio,  p.  203,  §  30. 
removal  of  suits  in  Tennessee,  p.  203,  §  31. 
circuit  court  in  districts  of  Missouri,  p.  204,  §  32. 
process  issued  out  of  former  court,  p.  204,  §  33. 
transfer  between  districts,  p.  205,  §  34. 
custody  of  books  and  papers,  p.  205,  §  35. 
circuit  court  for  southern  district  of  iSTew  York,  p. 

206,  §  36. 
jurisdiction,  p.  206,  §  36  a. 
Revenue  Act— removal  of  causes  brought  under,  p.  15. 
preceediugs  for  removal  under,  p.  15. 
liresentation  of  petition,  p.  15. 
duty  of  clerk  of  circuit  court,  p.  15. 
certiorari,  when  to  issue,  p.  15. 
habeas  corj^us,  when  to  issue,  p.  15. 
stay  of  proceedings  in  State  court,  p.  16. 
duty  of  marshal  under  writ,  r).  16. 
attachments  and  bails  to  remain  in  force,  p.  16. 
proceedings  de  7iovo,  when  allowed,  p.  16. 
nonpros^,  when  entered,  p.  16. 
supplying  record  and  proceedings,  p.  16. 
trial  on  neglect  to  furnish  copies,  p.  17. 
suits  against  internal  revenue  officers,  p.  17. 
petition  and  affidavit,  p.  18. 
proceedings  in  circuit  court,  p.  18. 
proceedings  in  State  court  arrested,  p.  18. 
duty  of  marshal  when  defendant  in  custody,  p.  18. 
attachments  and  bail  continue  in  force,  p.  19. 


KEVENUE  ACT— REVISED  STATUTES.  279 

Revenue  Act— Continued. 

acts  of  officers  under  tax  laws,  p.  19, 
property  taken  irrepleviable,  p.  20. 
misdemeanor  to  dispossess  or  rescue,  p.  20. 
repeal  of  section  remanding  case,  p.  20. 

See  Rev.  Stats.  §§  643,  646,  645,  629  and  sees.  27,  15, 
13,  of  this  book. 
Revenue  oflBcers— removal  of  suits  against,  p.  196,  §  27. 
Revised  Statutes— removal  of  suits,  p.  34,  §  639,  p.  84, 

§4. 
amount  in  dispute,  p.  34,  §639,  p.  84,  §  4. 
to  circuit  court  of  what  district,  p.  34,  §  639,  p.  84, 

§4. 
suits  against  aliens,  p.  34,  §  639,  p.  91,  §  5. 
between  citizens  of  different  States,  p.  34,  §  639,  p. 

91,  §  5. 
on  petition  of  defendant,  p.  34,  §  639,  p.  91,  §  5. 
at  time  of  entering  appearance,  p.  34,  §  639,  p.  91  §  5, 
against  alien  and  citizen  of  State,  p.  34,  §  639,  p.  95, 

§6. 
against  citizen  of  State  and  citizen  of  other  State, 

p.  34,  §  639,  p.  95,  §  6. 
upon  petition  of  defendant,  p.  34,  §  639,  p.  95,  §  6. 
before  trial  or  final  hearing,  p.  34,  §  639,  p.  95,  §  6. 
if  brought  to  restrain  or  enjoin,  p.  34,  §639,  p.  96,  §  6. 
or  where  there  can  be  a  final  determination,  p.  34, 

§  639,  p.  96,  §  6. 
renaoval  not   to  prejudice  right  of   plaintiff,  p.  34, 

§  639,  p.  96,  §  6. 
removal  by  plaintiff  or  defendant,  p.  35,  §  639,  p.  101, 

§7. 
before  trial  or  final  hearing,  p.  35,  §  639,  p.  101,  §  7. 
affidavit  of  prejudice  or  local  influence,  p.  35,  §  639, 

p.  101,  §  7. 
siifficient  surety  to  be  offered,  p.  35,  §  639,  p.  103,  §  8. 
for  entering  copies  of  process,  etc.,  p.  36,  §  639,  p. 

103,  §  8. 
security  for  appearance  and  special  bail,  p.  35,  §  639, 

p.  103,  §  8. 
duty  of  State  court,  p.  35,  §  639,  p.  103,  §  8. 
bail  originally  taken  is  discharged,  p.  35,  §  639,  p. 

103,  §  8. 
proceedings  in  circuit  court,  p.  35,  §  639,  p.  104,  §  9. 
force  and  effect  of  copies  of  pleadings,  p.  35,  §  639, 

p.  104,  §  9. 
United    States  corporations    other   than  banking, 

p.  36,  §  640,  p.  189,  §  24. 
suits  against  members  thereof,  p.  36,  §  640,  p.  189, 

§24.. 


280  REVISED  STATUTES. 

Revised  Statutes— Coyitinued. 

removal  to  district  where  suit  is  pending,  p.  36,  §  640, 

p.  189,  §  24. 
verified  petition,  what  to  state,  p.  36,  §  640,  p.  189, 

§24. 
against  persons  denied  civil  rights,  p.  36,  §  641,  p. 

191,  §  25. 
civil  suits  or  criminal  prosecutions,  p.  36,  §  641,  p. 

191,  §  25. 
against  any  officer  or  other  person,  p.  36,  §  641,  p. 

191,  §  25. 
for  any  wrongs  under  color  of  office,  p.  36,  §  641,  p. 

191,  §  25. 
petition  before  trial  or  final  hearing,  p.  36,  §  641,  p. 

191,  §  25. 

facts  to  be  verified  by  oath,  p.  36,  §  641,  p.  191,  §  25. 
removal  to  next  circuit  court,  p.  36,  §641,  p.  191,  §25. 
further  proceedings  in  State  court  to  cease,  p.  37, 

§  641,  p.  192,  §  25. 
bail  and  security  to  remain  in  force,  p.  37,  §  641,  p. 

192,  §  25. 

duty  of  clerk  of  State  court,  p.  37,  §  641,  p.  192,  §  25. 
process  pleadings,  etc.,  to  be  furnished,  p.  37,  §  641, 

p.  192,  §  25. 
cause  to  proceed  in  circuit  court,  p.  37,  §  641,  p.  192, 

§25. 
when  petitioner  may  docket  case,  p.  37,  §  641,  p.  192, 

§25. 
nonsuit  and  dismissal  when,  p.  37,  §  641,  p.  192,  §  25. 
dismissal  as  a  bar,  p.  37,  §  641,  p.  192,  §  25. 
effect  of  failure  of  petition  to  file  papers,  p.  37,  §  641, 

p.  192,  §  25. 
when  petitioner  in  actual  custody,  p.  37,  §  642,  p. 

196,  §  26. 

habeas  corpus  cum  causa  to  issue,  p.  38,  §  642,  p.  196, 

§26. 
duty  of  marshal  under  writ,  p.  38,  §  642,  p.  196,  §  26. 
suits  and    prosecutions    against    revenue    officers, 

p.  38,  §  643,  p.  196,  §  27. 
against  officers  under  registration  laws,  p.  38,  §  643, 

p.  196,  §  27. 
against  person  holding  title  from  officer,  p.  38,  §  643, 

p.  196,  §  27. 
acts  concerning  "  elective  franchise,"  p.  38,  §  643,  p. 

197,  §  27. 

removal  before  trial  or  final  hearing,  p.  38,  §  643,  p. 

197,  §  27. 
to  circuit  court  where  case  pending,  p.  38,  §  643,  p. 

197,  §  27, 


REVISED  STATUTES.  283 

Revised  Statutes— Continued. 

petition,  what  to  set  forth,  p.  38,  §  643,  p.  197,  §  27. 
to  be  verified  and  certified  by  counsel,  p.  38,  §  64,3,  p. 

197,  §  27. 
certificate  of  counsel,  what  to  State,  p.  38,  §  643,  p. 

197,  §  27. 
cause  to  be  docketed  in  circuit  court,  p.  39,  §  643,  p. 

197,  §  27. 

proceedings  in  circuit  court,  p.  39,  §  643,  p.  197,  §  27. 
bail  and  other  security  to  continue  in  force,  p.  39, 

§  643,  p.  197,  §  27. 
certiorari,  when  to  issue,  p.  39,  §  643,  p.  197,  §  27. 
habeas  corpus,  when  to  issue,  p.  39,  §  643,  p.  197, 

§27. 
duty  of  State  court  to  stay  proceedings,  p.  39,  §  643, 

p.  197,  §  27. 
futher  proceedings  in  State  court  void,  p.  39,  §  643, 

p.  198,  §  27. 
duty  of  marshal  under  writ  of  habeas  corpus,  p.  39, 

§  643,  p.  198.  §  27. 
when  proceedings  to  be  de  novo,  p.  40,  §  643,  p.  198, 

§27. 
judgment  of  nonpros.,  when  entered,  p.  40,  §  643,  p. 

198,  §  27. 

removal  by  aliens  in  particular  cases,  p.  40,  §  644,  p. 

203,  §  28. 
by  alien  against  civil  officer,  p.  40,  §  644,  p.  203,  §  28. 
removal  into  what  district,  p.  40,  §  644,  p.  203,  §  28. 
refusal  of  copies  by  clerk  of  State  court,  p.  40,  §  645, 

p.  163,  §  13. 
records  supplied  by  affidavit   or  otherwise,  p.  40, 

§  645,  p.  163,  §  13. 
attachments,  injunctions,  etc.,  to  remain  in  force, 

p.  41,  §  G45,  p.  168,  §  15. 
bond  of  indemnity  and  obligations  to  remain  in 

force,  p.  41,  §  645,  p.  168,  §  15. 
removal  where  parties  claim  lands,  p.  42,  §  646,  p. 

162,  §  12. 
titles  derived  from  different  States,  p.  42,  §  646,  p. 

162,  §  12. 
affidavit  of  claim  of  right,  p.  42,  §  646,  p.  162,  §  12. 
adverse  partv,  duty  and  obligations,  p.  42,  §  646,  p. 

162,  §  12. 
when  party  may  remove  cause,  p.  42,  §  646,  p.  162, 

§12. 
removal  by  defendant,  how  effected,  p.  42,  §  646,  p. 

162,  §  12. 
what  title  may  be  proved,  p.  42.  §  646,  p.  162,  §  12. 


282  KEVn'AL — STATUTES. 

Revival — on  death  of  party,  p.  84,  §  3. 
Right- of  removal,  p.  88,  §4  c,  p.  123,  §  10  m. 

right  dependent  on  citizenship,  p.  89,  §  4  (i. 

under  Act  of  1875,  p.  133,  §  10  g. 
Service — by  publication,  p.  78,  §  2. 

on  corporation,  p.  81,  §  2  c. 
State  Court— proceedings  in,  p.  155,  §  11  7i. 

proceedings  not  vacated  by,  p.  182,  §  18  c. 
Statutes — judieiary  act,  p.  13. 

revenue  act  of  1833,  p.  15. 

revenue  act  of  1866,  p.  17. 

habeas  corpus  act,  p.  21. 

amendment  to  habeas  corpus  act,  p.  23. 

removal  act  of  1866,  p.  25. 

amendment— act  of  1867,  p.  27. 

removal  by  corporations,  p.  28. 

civil  rights  act  of  1866,  p.  29. 

civil  rights  act  of  1871,  p.  30. 

actions  against  civil  officers,  p.  33. 

revised  statutes,  removals  under,  p.  34. 

suits  against  corporations,  p.  36. 

against  persons  denied  civil  rights,  p.  36. 

when  petitioner  in  actual  custody,  p.  37. 

suits  and  prosecutions  against  civil  officers,  p.  38. 

suits  by  aliens  in  particular  case,  p.  40. 

copies  of  record  refused  by  clerk,  p.  40. 

attachments,    injunctions,   and    bonds    remain    in 
force,  p.  41. 

suits  on  conflicting  land  claims,  p.  42. 

Act  of  1875,  p.  43. 

civil  action,  removal  of,  p.  44. 

proceedings  for  removal,  p.  44. 

process  not  affected  by,  p.  46. 

dismissal,  when,  p.  47. 

proceedings  in  circuit  court,  p.  47. 

time  of  application — misfeasance  of  clerk,  p.  47. 

revival  on  death  of  party,  p.  50. 

repealing  clause,  p.  50. 
Statutes  of  special  application,  suits  against  corpora- 
tions, p.  189,  §  24. 

corporations  created  under  congressional  acts,  p. 
189,  §  24  a. 

causes  against  persons  denied  civil  rights,  p.  191, 
§25. 

denial  of  civil  rights,  p.  193,  §  25  a. 

in  criminal  cases,  p.  194,  §  25  b. 

in  general — proceedings,  p.  195,  §  25  c. 

when  petitioner  in  actual  custody,  p.  196,  §  26. 


STATUTES — WAm:R.  283 

statutes— Co  n^mwe(^. 

habeas  corpus,  p.  196,  §  26  a. 

suits  and  prosecutions  against  United  States  officers, 
p.  196,  §  27. 

in  general,  p.  198,  §  27  a. 

suits  removable,  p.  199,  §27  6. 

criminal  cases,  p.  200,  §  27  c. 

practice  and  procedure,  p.  201,  §  27  d. 

enforcing  removal,  p.  202,  §  27  e. 

removal  by  aliens  in  a  particular  case,  p.  203,  §  28. 
Suits  against  aliens— removal  of,  p.  109,  §  10  d. 
Suits — arising  under  Constitution,  etc.,  p.  57,  §  1  e. 

under  United  States  statutes,  p.  58,  §  1/. 

arising  out  of  patent  laws,  p.  59,  §  1  gr. 

out  of  copyright  and  trade-mark  laws,  p.  62,  §  1  A. 

where  government  is  party,  p.  62,  §  1  i. 
Suits  pending— removal  of,  p."  ilo,  §  10  g. 
Suits  removable— under  Act  of  1875,  p.  105,  §  10  a. 

not  removable,  p.  107,  §  10  6. 

against  revenue  officers,  p.  199,  §  27  6. 
Sureties — for  entering  copies  of  papers,  p,  103,  §  8. 
Tennessee— removal  of  suits  in,  p.  203,  §  31. 
Term— at  or  before  first,  p.  144,  §  11  d. 

when  course  could  be  first  tried,  p.  147,  §  11  e. 
Territorial  limit— of  jurisdiction,  p.  74,  %lq. 
Time— of  application  for  removal,  p.  144,  §  11  d. 

when  cause  could  be  first  tried,  p.  147,  §  11  e. 

under  prior  statutes,  p.  150,  §  11  f. 
Trade-mark  laws— suits  under,  p.  62,  §  1  ^. 
Treaties— suits  arising  under,  p.  58,  §  1/,  p.  Ill,  §  10/. 
Trial— issues  of  fact  when  tried  by  jury,  p.  183,  §  19. 

exceptions  to  trial  by  jury,  p.  184,  §  19  a. 

issues  when  tried  by  court,  p.  184,  §  20. 

waiver  of  jury  trial,  p.  184,  §  20  a. 

findings  by  the  court,  p.  185,  §  20  6. 
Undertaking— see  Precedents. 

TTnited  States  officers— removal  of  suits,  p.  199,  §  27. 
U.  S.  Statutes — removal  of  suits  under,  p.  58,  §  1/. 
Waiver— of  jury  trial,  p.  184,  §  20  a. 

of  irregularities,  p.  83.  §  2  e. 


B     000  018  888     8 


